Derogatory to Professional Character? The Evolution of Physician Anti-Patenting Norms

Derogatory to Professional Character? The Evolution of Physician Anti-Patenting Norms

Description

Physicians have a long history of opposing medical patenting. When the American Medical Association was formed in 1847, one of its first acts was to adopt a Code of Ethics stating that it was “derogatory to professional character” for physicians to hold patents “for any surgical instrument or medicine.” Opposition to patents on drugs and medical devices subsided in the early twentieth century and the ethical strictures against drug and device patents were removed. Indeed, physicians now are co-inventors on a sizeable fraction of important medical device patents. While the ethical bans on physician patenting of drugs and devices are a thing of the past, the norm against patenting medical procedures has remained surprisingly robust. As I have described in more detail elsewhere, in the 1990s, a physician movement against medical procedure patents led to the enactment of a statutory provision exempting healthcare workers from infringement remedies for such patents. More recently, medical associations weighed in against the patentability of diagnostic methods in Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc. and Mayo Collaborative Servs. v. Prometheus Labs., Inc. Why is it acceptable for physicians to patent drugs and devices, but not medical procedures? This chapter hypothesizes that the evolution of physician ethical norms about patenting in the United States can be best understood through the lens of user innovation. Studies have shown that “user innovators,” whose motivation for invention comes primarily from their use of a technology, often form reputation-based communities in which the norm is to share one’s inventions and patenting is frowned upon. There are a number of plausible reasons for this choice. First, user innovators benefit from a sharing norm because they can use the inventions shared by other community members. Second, by sharing their inventions with the community, user innovators obtain feedback and suggestions for improvement. Third, sharing a valued innovation with a user community boosts a user innovator’s reputation within the community and sometimes even among the broader public. Depending upon the particular community, a reputational boost may lead to non-pecuniary or monetary rewards (or both). Patents may be both costly and dangerous to the viability of a user innovator community with a reputation-based sharing norm. They may introduce transaction costs and deadweight loss without an offsetting increase in innovation or tempt community members to defect from the sharing regime in favor of an exclusivity-based monetary reward. During the mid-nineteenth century, physicians were the primary innovators of drugs, devices, and procedures for use in treating their patients. Like other groups of user innovators, they formed a reputation-based community with a norm of sharing their innovations. The norm and its enforcement are illustrated by the famous dispute over the patenting of ether anesthesia. During the twentieth century, pharmaceutical companies and medical device manufacturers became major contributors to drug and device innovation. The anti-patenting norm was not enforceable against these companies, who wanted to sell, rather than use, their inventions and were not interested in the physician community’s reputational rewards. The demise of the ethical ban on drug and device patents was a natural response to these developments. The robustness of the ethical norm against patenting medical and diagnostic procedures is also understandable from a user innovation perspective. Medical procedure innovation remains primarily the province of physician user innovators who can both benefit from and enforce a sharing norm.

Source Publication

Creativity without Law: Challenging the Assumptions of Intellectual Property

Source Editors/Authors

Kate Darling, Aaron Perzanowski

Publication Date

2017

Derogatory to Professional Character? The Evolution of Physician Anti-Patenting Norms

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