Patentable Inventions: Part II

Method of Treatment Section 3 (i) states, any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products is not patentable. As the main argument for the exclusion the definition of “industrial applicability” is used. Patent may however be obtained for surgical, therapeutic or diagnostic instrument or apparatus. A method of treatment of malignant tumor cells and method of removal of dental plaque and carries are not patentable as per section 3 (i) but an application of substance to human body purely for cosmetic purpose does not fall within the scope of this section. Prophylactic treatment such as vaccination, inoculation is not patentable. For example, prophylactic immuno-therapy in animals is regarded as therapy where the term therapy includes prevention as well as treatment or cure of diseases. In Joos vs. Commissioner of Patent (1973) RFC 59, it was held that to be treatment in relevant senses it seems that the purpose of the application to the body whether a substance or a process must be the arrest or cure of a disease or diseased condition or correcting of some malfunction or amelioration of some incapacity or disability. It was held in Lee Pharmaceuticals application (1978) RFC 51 that since one of the results of grant pits and fissures in teeth was to prevent the onset of dental decay, the purpose of the treatment was therapeutic rather than cosmetics. In Oral Health Products Inc. (Habtead’s Application, (1977) RFC 612), the claims to a method of removing dental plaque and/or caries were refused, as was a claim to a method of cleaning teeth, which embraced both curative and cosmetic effects. This decision has been followed in ICI Lid’s Application (not reported), where a claim was refused to a method of cleaning teeth which removed both plaque and stains; it was argued that when applied to perfectly healthy teeth the method was purely cosmetic, but the hearing officer observed that practically all medicinal treatments which are preventive in nature (such as vaccination) must at times be applied to people who would have remained healthy anyway, but they remained medicinal treatments. Surgery is defined as the treatment of disease or injury by operation or manipulation. It is not limited to cutting the body but includes manipulation such as the setting of broken bones or relocating dislocated joints, and also dental surgery. In general, any operation on the body which required the skill and knowledge of a surgeon would be regarded as surgery. For example, in Unilever limited (Davis) Application, [1983] RFC 219, Falconer J observed that any method of surgical treatment, whether curative, prophylactic or cosmetic, is not patentable. This view, which was obiter, was cited by the hearing officer in Occidental Petroleum Corporation’s Application (not reported) in refusing to allow claims to a method of implanting an embryo transplant from a donor mammal into the uterus of a recipient mammal, since the method would necessarily have to be carried out by a surgeon or veterinary surgeon. Section 3 (i) is however limited to methods practiced on the human or animal body excluding plants. Also methods of diagnosis performed on tissues or fluids, which have been permanently removed from the body, are outside the scope of section 3 (i). To further clarify this section “body” means a living body, therefore, a method practiced on a dead body, for example a process that determines the cause of death, fall outside the scope of this section. Hence, diagnostic methods are patentable if they are used outside of living human or animal bodies i.e. body tissues or fluids like urine or blood.