1964 Hippocratic Oath and Patents

by Stephan Kinsella on June 8, 2025

In S1:E7 of the TV series Doc, the main character, Dr. Amy Larsen, has to take the medical boards again because of an accident giving her amnesia. Preparing for the boards, she recited part of the modern, 1964 Hippocratic Oath:

I swear to fulfill, to the best of my ability and judgment, this covenant:

I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.

An admirable, implicitly anti-IP sentiment. Which some doctors seem to thwart by filing patents on medical procedures–seeking to block other doctors from using the knowledge they have to treat patients.

I wrote about this 25 years ago in “How to Operate Within the Law: Patents on Medical Procedures,” The Legal Intelligencer [Philadelphia] (Thurs., Feb. 5, 1998). As I wrote there:

Another controversy concerns the granting of patents on medical techniques, such as new surgical procedures. Should a doctor be able to obtain a legal monopoly over the practice of a new surgical technique? Should he or she be financially rewarded for such useful medical innovations, or should all other doctors and patients have an automatic right to use these ideas for free?

Many countries do not allow patents to be granted on medical techniques. One reason for this policy is that there is a perceived conflict between the rights accorded a patentee and ethical obligations of a physician. The U.S. Patent and Trademark Office (PTO), however, has been issuing medical procedure patents for decades.

The recent controversy rose to a head as a result of a notorious lawsuit, Pallin v. Singer (36 U.S.P.Q.2d 1050 (1995)). In this case, an eye surgeon who had obtained a patent for a special cataract surgical technique sued other doctors for infringement of his patent. The defendants ultimately prevailed, however, when the court entered a consent order, effectively decreeing the patent invalid.

Thus, although medical procedure patents are obtainable in the U.S., there did not seem to be a significant conflict in actual practice between patentees and doctors. In short, it did not look like patentees would be very likely to abuse such patents.

In the wake of the Pallin case, however, many groups, such as the American Medical Association, condemned the patenting of medical and surgical procedures, and began to lobby Congress to exempt such procedures from patent protection.

The American Academy of Ophthalmology (ACO) argued, for example, that such patents cause monopoly prices to be charged for health care, helping to increase health care costs. Also, because of the danger that some doctors will keep their medical innovations secret in hopes of obtaining a patent, the ACO warned that the lure of medical patents may induce physicians to shirk their obligation to share their knowledge and skills for the benefit of humanity.

Pro-inventor groups, however, strongly opposed changing the patent law, fearing that fewer medical innovations would be forthcoming if the encouragements of the patent system were removed. In addition, the inventor groups also cautioned that exempting medical procedures from patent protection would unfairly discriminate between different types or classes of inventors and inventions.

But of course the pro-inventor groups opposed this! Patents are death! As I wrote in “The Death Throes of Pro-IP Libertarianism,”

It is obscene to undermine the glorious operation of the market in producing wealth and abundance by imposing artificial scarcity on human knowledge and learning…. Learning, emulation, and information are good. It is good that information can be reproduced, retained, spread, and taught and learned and communicated so easily. Granted, we cannot say that it is bad that the world of physical resources is one of scarcity — this is the way reality is, after all — but it is certainly a challenge, and it makes life a struggle. It is suicidal and foolish to try to hamper one of our most important tools — learning, emulation, knowledge — by imposing scarcity on it. Intellectual property is theft. Intellectual property is statism. Intellectual property is death. Give us intellectual freedom instead!