A Common Law Prescription for a Medical Malaise
C. Ng, L. Bently and G. D'Agostino (eds) The Common Law of Intellectual Property: Essays in Honour of Professor David Vaver (Hart, 2010)
20 Pages Posted: 6 Aug 2013
Date Written: June 1, 2010
The Medical Methods Exception (MME) has always seemed remarkable. It presently excludes technologies applied on or in the body from patentability, claiming to protect medical practitioners treating patients from liability for patent infringement. The exception’s existence seems to argue that the medical profession’s work is significant enough to society to warrant special rules in patent law. In so doing, the MME contradicts the technology-neutral, morally agnostic stance of patent law which leaves the regulation of polycentric disputes to other fora. More remarkable, however, is how the MME became an integral part of patent law doctrine and now the European Patent Convention (EPC), and what that process tells us about the common law. Its evolution demonstrates that the common law is not monolithic and self-contained, but relies on mixed legal and professional communities of reception to shape its content. These communities may transcend national boundaries. As a result, informal common law principles may reveal themselves to be better rooted than the seemingly clearer and more certain statutory sources of law, which thus become secondary. This chapter considers the origins of the common law rule followed by the nature and international dimensions of the legal and medical community that received and practised the rule, in particular of Commonwealth courts and Canadian physicians. I will illustrate through the history of the MME the hybrid nature of the common law as part rule and part custom, inaccurately modeled by either legal positivism or as merely the reception of customary norms.
Keywords: medical methods exception patent intellectual property law common legal history
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