Medical Tourism in Developing Countries

Promoting Medical Tourism ● 141Patents are crucial for medical tourism since they regulate the use offoreign technology, devices, and pharmaceuticals in destination countries.Given that the United States is at the forefront of medical innovation, thediscussion of patents below focuses on the American experience (as Cogan,Hubbard, and Kessler pointed out, Americans have received more Nobelprizes in medicine and physiology than researchers from all other countriescombined, eight of the ten most important medical innovations of the past30 years originated in the United States, and eight of the world’s top-sellingdrugs are produced by American companies 3 ).PatentsThe structure of patent law worldwide dictates that U.S. patent holders havereal reason to be concerned about the outsourcing of their goods. Patentprotection is highly territorial; in other words, a product that is patented inthe United States is protected only in the United States, and does not carrythis protection in every other country around the world. Rather, were acompany to seek protection for one of its products, it would have to applyfor patents in every country where it wanted protection. This fact raises ahost of further concerns, as the availability and breadth of patent protectionalso varies from country to country. Some countries, for example, excludecertain types of products from patentability (TRIPS § 27(3)(A), for example,states that member countries may exclude “diagnostic, therapeutic, and surgicalmethods” from patentability; under the U.S. patent regime, medicalprocedures are protected). Thus the American pharmaceutical industry musttake into account not only the costs of patenting abroad, but also the veryreal possibility that its products may not even be eligible for protectionabroad. The difficulty and expense of patenting worldwide, and the lack ofprotection in some areas, makes the duplication of medicines, procedures,and machinery abroad not only a possibility, but also a certainty. Indianpharmaceutical companies, for example, violate no U.S. laws by creating ageneric version that exactly duplicates a medicine that is patented only inthe United States. To the extent that some products are not patented abroad,U.S. citizens traveling for medical care will have access to the same productsthey would get at home, except at a lower cost.A further concern for U.S. pharmaceuticals is that foreign hospitalsconducting research will improve upon an existing product, and perhapspatent that improved version. A U.S.-protected patent holder does not havethe right to automatically hold patents over all the improvements on itsexisting patent. Thus, a foreign company or hospital that runs competitivefacilities and is interested in research and development will be able to patent