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Patent Protection in Medical Technologies and Drugs


Authored by - Shreya Yadav

Keywords - Patent protection, intellectual property, copyright.


Introduction


Copyright trademark patent, etc all were devised for the owners, authors, or innovators to give them credit for their work done, to give benefit for the time and hard work put into the work due to which certain restrictions are put on the use of such works. But there are certain exceptions provided as well, on the concept of the betterment of the society or for the benefit of the people. The patent provides the right to the patentee to exclude others from reproducing, selling, etc. Patents are an exclusive property right in intangible creations of the human mind[1].


The patents are provided to the patentee for 20 years from the date of the patent application. A patent is granted to the products which are new and has a technical application in the industry, the patent cannot be granted to the product which is not new and it exists before the market.

Patenting in the Medical Industry


The medical industry involves various multidisciplinary subjects to be interconnected such has for medical technologies the connection between medical and science is built to invent new things in medical industries. Therefore the medical industry is very complex when the concept of patenting is talked about. Certain things do not fall under patent protection of medical methods such as surgical methods, diagnostic methods, and therapy methods as for the need for development in the field of science and medicine such exceptions can be granted.


Giving protection to things related to public health which is for protecting the life of the human and animals it can be refused as mentioned under Article 27.2 of the TRIPS. Similarly, certain plant and animal inventions can be refused to be patented mentioned under Article 27.3b[2]. As giving patent protection on such methods the life of the patient is in the hands of the patentee which is not fair to the people in the society[3]. When considered all the factors above mentioned which do not fall under patent protection, the patent can then be granted for the medical industry on the composition and substances.


Granting the patent in the medical industry was mentioned under the TRIPS agreement which is an agreement on trade-related aspects of intellectual property rights. But certain issues raised by the developing nations and the least developed nations, for example, India being a developing nation did not have the infrastructure to adapt the patent laws for the medical industries mentioned so, for instance, it did not provide product patent to the pharmaceutical drugs[4] which occurred to be huge losses of the US pharmaceutical industries. When raised the issue by the US, an extra time limit was provided for the developing nation and more to the least developed nations than the developing nation.

Types of Patents under the Medical Industry


The different types of patents mentioned under the medical industry are discussed below:

1. Drug Compound and Composition- In this type of patent the compound and composition of the drugs are protected by the patent. The compound is said to be its chemical structure and is known as Markush type claims. The composition is the amount and key ingredients used under a product[5].


2. Medical Devices- Under this category the patent is provided to the medical devices which help in diagnosis such as stents, surgical tools, etc. The profits born by the patentee under this category are usually low.


3. Medical and Surgical Methods- it involves the process of surgery or the diagnosis of such ailments. Many countries have banned these types of patent protection but countries like the US provides for such patents. Examples are spine surgery or repairing a rotator cuff surgery are medical patents[6].


4. Technology Patents- These patents are based on the techniques used to solve specific technology-related problems like stabilization, taste masking, increase in solubility, etc[7].

Conclusion


The TRIPS agreement made all the members to be bound to provide patent protection to medical technologies and drugs. The patent protection of drugs can be two types of can be the discovering of a new way to use an old drug or certificate to extend for five more years. Medical patents help in the promotion of discovering new approaches towards health care or medical care and enhancement in the quality of life of people all around the world.

The restrictions put on certain patents are also put for the betterment of society all around the globe as they are not denied their right to life. In the Indian context, the introduction of patenting in the filed or medical industry has been a boon for India as it has been helpful for the growth of the medical industry.

References


[1] Lehman, B. (2003). The Pharmaceutical Industry and the Patent System. Users.wfu.edu. Retrieved 26 August 2020, from https://users.wfu.edu/mcfallta/DIR0/pharma_patents.pdf.

[2] TRIPS and pharmaceutical patents. Wto.org. (2006). Retrieved 26 August 2020, from https://www.wto.org/english/tratop_e/trips_e/tripsfactsheet_pharma_2006_e.pdf.

[3] Miladinović, Z., Radojković, M., & Varga, S. (2013). Patent law protection of inventions in medicine and pharmaceutical industry. Vojnosanit Preg, 70(6). DOI: 347.77::[61:615]

[4] Ghai, D. (2008). PATENT PROTECTION AND INDIAN PHARMACEUTICAL INDUSTRY. International Journal Of Pharmaceutical Sciences Review And Research, 3(2). Retrieved from http://www.globalresearchonline.net/journalcontents/Volume3issue2/Article%20008.pdf

[5] Mathur, V. (2012). Patenting of Pharmaceuticals: An Indian Perspective. International Journal Of Drug Development & Research, 4(3). Retrieved from https://www.ijddr.in/drug-development/patenting-of-pharmaceuticals-an-indian-perspective.pdf

[6] Mayfield, D. (2016). Medical Patents and How New Instruments or Medications Might Be Patented. The Journal Of Missouri State Medical Association- 1904, 113(6). Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6139778/

[7] ibid, [5]