The Medical Liability Exemption: A Path to Affordable Pharmaceuticals

Patent monopolies are tolerated because we believe they promote progress that benefits society. What should be done when these monopolies actually increase human suffering? Drug prices in America are fifty to eighty percent higher than the rest of the world, meaning many cannot afford drugs that will improve or even save their lives. When striking a balance between the interests of the patent holder and that of the public, it is important to bear in mind that the rewards granted to patentees are secondary to the public benefit derived from their labors. The ideal solution would come from Congress creating a need-based exception to drug patent infringement, but this is unlikely to occur. An infrequently used statutory exemption, found in Section 287(c) of the Patent Act, precludes liability when a physician infringes a medical process patent. With the advances in 3D printing, doctors will soon be able to print drugs for their patients. The courts could interpret 287(c) to protect physicians from patent liability for printing drugs when provided to patients demonstrating financial hardship. When faced with new technology, the courts have been creative in interpreting the intellectual property statutes in order to reach a just and equitable resolution. The public need for affordable drugs should spur the courts to such creativity when addressing the issue of 3D drug printing