Myths of the medical methods exclusion

Date & time

1–2pm Friday 10 August 2018


Phillipa Weeks Staff Library

ANU College of Law, 5 Fellows Road, The Australian National University


Catherine Kelly, Bristol University Law School


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Nicole Harman
Public lecture
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Recent Australian decisions such as Apotex v Sanofi-Aventis [2013] HCA 50 and Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 have permitted medical process patents. Such an approach is sometimes criticised as against traditional canon of medical ethics.

This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. While the rate of patenting remained lower than in other fields of technical endeavour, this can largely be explained by the public nature of medical practice during this period.

This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions.


  • Catherine Kelly »

    After finishing her Law degree at the Australian National University, Catherine worked at Freehills and the Australian Medical Association before undertaking an MSc and DPhil in the History of Medicine at the University of Oxford. 

    Catherine's research focuses on the law’s interaction with science and medicine in both historical and contemporary contexts. In her historical work she examines the ways in which laws relating to medicine and scientific innovation were made, applied and changed. Her work on current medical laws is informed by her experience at the Australian Medical Association and focuses on professional regulation and the implementation of public health legislation and policy. 

    She has previously been awarded a Harold White Fellowship at the National Library of Australia, a Caird Short-Term Research Fellowship at the National Maritime Museum, and from 2005-08 held the Clifford Norton Studentship in the History of Science at The Queen’s College, Oxford.

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