[Congressional Record Volume 140, Number 116 (Wednesday, August 17, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 17, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                      SURGICAL PROCEDURES PATENTS

                                 ______


                            HON. JOHN BRYANT

                                of texas

                    in the house of representatives

                       Wednesday, August 17, 1994

  Mr. BRYANT. Mr. Speaker, putting aside for a moment all of the 
problems which exist in our Nation's health care delivery system--and 
they are legion--most of us would agree that the United States leads 
the world in the development and practice of state-of-the-art medicine.
  Unfortunately, the U.S. Patent and Trademark Office may be erecting a 
barrier to providing the most up-to-date surgical procedures.
  The American Society of Cataract and Refractive Surgery has brought a 
serious matter to the attention of Congress: the approval of patents 
for purely surgical procedures. For most of our history, medical 
procedures, independent of a medical device, were not considered 
patentable. In 1952, new and useful processes were added to the list of 
subject matter that could be patented, a move that was intended to 
codify existing policy, not change it. At the time, surgical procedures 
were not considered patentable.
  In more recent years, however, the Patent and Trademark Office has 
issued process patents for purely surgical procedures and the holders 
of those patents have actively sought to enforce them. One example is a 
1992 patent issued to a doctor for a particularly shaped incision for 
eye surgery. No patentable devices, instruments, or drugs were claimed. 
I have been told that this doctor is now suing and threatening to sue 
other surgeons for using the same or similar incisions.
  Such patents pose a serious problem, both in terms of health care 
costs and medical treatment. License fees and infringement litigation 
would increase the cost of providing health care. In addition, the 
threat of litigation places a pressure on doctors to refrain from using 
surgical techniques or delay using surgical techniques, for non-medical 
reasons. Many foreign countries do not permit surgical procedures to be 
patented.
  The American Society of Cataract and Refractive Surgery has presented 
to Congress its view that medicine has long had an alternative 
incentive system to promote surgical innovation and sharing of 
information: the recognition and prestige that flows from publishing in 
medical journals and presenting papers at medical conferences. The 
Society has pointed out that the extraordinary progress in surgical 
procedures during the past century has been accomplished with virtually 
no encouragement from the patent laws and that injecting patent law 
into this field is unnecessary and harmful.
  Mr. Speaker, I would like to encourage my colleagues on the House 
Judiciary Committee to look into this matter. There is little to be 
gained and a great deal to be lost from a policy that discourages 
physicians from practicing state-of-the-art medicine.

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