Under Federal law 35 USC 287(C), US physicians and other medical practitioners have a limited immunity to certain types of medical procedure patents.
US patent laws allow patents on methods as well as devices (e.g. gadgets) and compositions of matter (e.g. drugs). But should medical procedure (method) patents apply to medical practitioners? Public policy here is a bit uncertain. On the one hand, we can’t have our physicians afraid to try new procedures, but on the other hand, if we don’t financially reward innovation, then this could stifle medical innovation. So in the US, and indeed throughout the world, various countries have wrestled with the question as to if medical procedure patents should be allowed, or not.
For example, if a surgeon invents a new type of incision that is otherwise eligible for a patent, should the surgeon be able to get a patent, and be able to charge other surgeons to use that type of incision? What about the first medical use of Ether? What about using ultrasound for fetal gender?
Over about the last 100 years in the US, the pendulum has swung back and forth from “no” to “yes”, and is presently, as described in 35 USC 287(C) (passed in 1997), sitting somewhere in the middle. In the US, the short answer is “medical procedure patents are generally allowed”, but in some limited cases, medical practitioners get immunity from these patents. In other words, you could get a patent, but you might have troubles enforcing it.
The trick to avoiding this unfortunate situation – having a medical procedure patent that lacks value due to restrictions on enforcement, is to consider 35 USC 287(C) and write claims that limit the impact of this patent law.
The good news, from the standpoint of inventors and startups, is that the enforceability carve-out aspects of this law are quite narrow. Patents for devices and compositions of matter can still be enforced. Further, under contributory infringement, you may also be able to enforce against manufacturers who are teaching use of their products for your patented method.
So in practice, US rules regarding medical procedure patents are not all that restrictive. The trick is that if you have a new medical procedure, also think a lot about those devices or medical supplies that are needed to implement your new procedure. And it doesn’t hurt to write a few claims with an eye towards contributory infringement, as well.