The U.S. Patent Act was first established in 1790. Since those initial legal codes, more than 10 million patents have been issued to inventors in the United States. While most patents concerning physical inventions make sense in layman’s terms, patents that cover medical procedures or abstract ideas continue to cause confusion in our nation’s legal system.
Let’s examine just how those patents work, and how they pertain to a specific procedure: hair transplants.
A normal person will shed between 50 and 100 hairs every day; someone who is losing their hair will experience a thinning and miniaturizing process that will make such loss exceptionally noticeable. Because hair replacement is in high demand by the 35 million men and 21 million women who have to deal with hair loss, there have been a number of patents regarding hair transplant surgeries set in place. For example, Dr. Robert M. Bernstein and his colleague Dr. William R. Rassman discovered a method that improves the outcome of follicular unit extraction, or FUE; by including a delay in between the creation of recipient sites and the insertion of follicular units into those sites, they were able to greatly increase success rates in patients.
Exceptions To The Rule
Dr. Bernstein and Dr. Rassman’s procedure was patented, but what does that mean? If someone were to create or use someone else’s patented physical invention, they would be forced to pay a penalty to the original owner of that device; it would be logical to argue that a patented medical procedure could only be performed by the physician who obtained and currently owns the patent — and therein lies the problem.
“Historically, the medical profession has considered patents on medical inventions as contrary to the philanthropic nature of the physician’s practice,” reads FindLaw’s Corporate Counsel Center website. “Almost 80 foreign countries, including Canada, Britain, and most countries in Europe, currently ban medical procedure patents.”
The U.S. is different; while the methods for performing surgery are still legally permissible, the use of machines or tools to perform that surgery becomes illegal, and the infringer may be required to pay penalties.
“The medical procedure exception does not extend beyond patents on procedures,” states LegalMatch. “It does not extend to any of the machines or tools used to perform the procedure. Thus, while a doctor will not be liable for infringing on a patented procedure, if he uses a patented surgical tool or a patented article of biotechnology to do so he can be liable for patent infringement and be required to pay remedies.”
The rules are finicky, by they nonetheless exist. If you’re looking to patent a medical procedure — or use a medical procedure that’s been patented — it might be best to seek legal counsel ahead of time.