Are the Brookhill–Wilk patents impediments to market growth in cybersurgery?

Abstract

BACKGROUND: In the past, many surgeons could practise their craft with little or no knowledge of patent law. But in the world of robotic and computerized surgery, this is increasingly a myopic approach, because the principle means of protecting high-tech surgical instruments is through the application of patent law. The issue is: does the Brookhill-Wilk patent, which covers the performance of remote robotic surgery, impede the growth of cybersurgery? METHODS: Review of the Brookhill-Wilk patent and relevant law. RESULTS: Patent law, which first took its form in the Middle Ages, attempts to balance the rewarding of innovation with the stifling of market growth. Using US patent law as a model, it would appear that the Brookhill-Wilk patent, a particular example of a medical process patent, could inhibit the growth of cybersurgery, as potential sums of money could be demanded by the patent holder from anyone who practises cybersurgery. However, two recent US Supreme Court cases appear to have seriously undermined the validity of a number of medical process patents, including the Brookhill-Wilk patent. CONCLUSION: Based on recent changes in patent law, it is not expected that Brookhill-Wilk patent will hinder the growth of cybersurgery.

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