(2002; 131 pages)
(v) Methods for treatment and diagnostics
Traditional treatment methods are usually specific to a particular country or to a particular community, although some of them, such as acupuncture, are used worldwide. Many methods of TRM have proven to be efficient and cost-effective in the provision of primary healthcare in the community, without causing harm to the human body. Such methods are generally accessible and affordable to people of all strata, particularly those living in poor and isolated regions (Ma’at, 2001, p. 2).
The patent protection of treatment and diagnostic methods faces important obstacles and limitations. First, such methods - which are applied to the human body - do not comply with the requirement of industrial applicability, imposed in most countries as a condition of patentability.110 A noticeable exception is the U.S., where “usefulness” and not industrial applicability is required, thereby broadening the room for such patenting to occur. Second, at least in the case of codified TRM, treatment methods, would be non patentable due to lack of novelty. Third, the enforcement of these kind of patents is problematic, since monitoring the use of treatments and prosecuting infringement is extremely difficult and costly.
110 In a few countries where this rule applies, the patentability of said methods has been allowed on the basis of courts’ interpretation or legal exceptions. See, e.g. Correa, 2000b, p. 26.
Most national patent laws exclude the patentability of diagnostic, therapeutic and surgical methods for the treatment of humans or animals, for legal, ethical or practical reasons. Article 27.3.a of the TRIPS Agreement explicitly allows Members not to grant patents for such methods. However, in the United States, patent practice increasingly favors the protection of medical methods, although a bill enacted in 1996 (amending US patent law, 35 USC 287.c) determined that the use of patented surgical methods can not be subjected to infringement suits.111. An illustration of such patents was the controversial (and finally revoked) US patent relating to turmeric mentioned above, which claimed a method of healing wounds and not the substance as such.
111 See, e.g. Grubb, 1999, p. 220.
In sum, because of their non-industrial applicability, or of their outright exclusion, treatment methods are generally not appropriable under patent laws. This means that TRM methods of treatment, whether codified or not, do not face the same risk of misappropriation by third parties as biological materials of medicinal use,112 being the U.S. - and a few other countries - a noticeable exception.
112 This also means, of course, that TRM holders will be unable to obtain patent protection over such methods.