Patent Protection On The Methods Of Medical Treatment

Chinese Patent Law excludes methods of medical treatment from being protected at present. The main reasons are that they do not have industrial practicability and are contrary to the social ethics if been patented. However, whether the two propositions themselves can stand is left with many questions. This thesis introduces the basic theories of patentability of methods of medical treatment, including its conception, characteristics, and classification. Then concerning the development of global industry, especially the fast development of biological medical technology and its impact on the public, the thesis introduces medical treatment patent protection legislation of some countries and its variation, on the basis of which the author tries to analyze why there exists such differences. The author makes an analysis on feasibility and necessity of patentability of medical treatment involving two points-demonstration investigation principle and justice principle. The thesis also tries to eliminate worries about patentability of medical treatment, presents necessity of patentability from the following four points:enhancing medical treatment technology public and motivating innovation, promoting Chinese medicine inheritance and development, making sure of justice, and clearing up the conflicts of the examination manual.Patent system is a two-edged sword, which is probably to be abused in any technical field and the medical area is no exception. Therefore, in order to counteract the adverse effect by abusing, it is a must to make regulating and find a balance between the interests of patentee and the public. The fourth chapter is about suggestions of legislature,in which compulsory licensing and immunity to patent tort are two main parts: Firstly, China Patent Law should delete the article 25(3) in order to make medical treatment become subject of patent law. Secondly, on the question of construing medical treatment compulsory licensing system, we can take full advantages of the present compulsory licensing system , combined with "The Measures for Compulsory Licensing of Patent Implementation" and "Enforcement Measures for Implementing the Patents Involving Public Health Issues" promulgated by China Intellectual Property Bureau, the thesis suggests that China Intellectual Property Bureau make the rule. After the accumulation of practices, it can be drawn up in statute to better compulsory licensing system and put it into full play. In view of immunity to patent tort, it can be treated as extention of article 63. As for detailed judgment rules, it need to be perfected in the time of practices.