Medical Tourism in Developing Countries

Promoting Medical Tourism ● 143American companies increasingly face international competition. Furthermore,with the advent of new technology, the statute will have to evolve from itsoriginal purpose as a remedy to the problem of overseas mechanical assembly,to previously unforeseen circumstances. The software industry, for example,has already provoked the serious judicial inspection of § 271(f) as the provisionapplies to computer code as a component. 7 Similarly, as an industry likepharmaceuticals evolves and follows the trend of internationalization, anunderstanding of § 271(f) as it applies to that industry will have to evolveconcurrently. Thus § 271(f) has a solid presence in the future of patent litigation,primarily in a world that is increasingly smaller and more integrated.The meaning and purpose of the statute will have to evolve organicallydepending on the needs of new technological sectors.Because § 271(f)(1) and (2) cover both potentially noninfringing componentsand specifically targeted components, many factual scenariospresented by personalized medicine fall under the statute. Any component,therefore, whether it is patentable by itself, or even necessarily onlyused in conjunction with a patented invention, will apply. Thus bodilyfluids or cancer cells, taken for the express purpose of diagnostic testing,could certainly be considered a component. Even though they are notpatentable in their own right, under § 271(f)(1), the sending of these cellsor cultures abroad for the express purpose of testing certainly meets the“actively induce[d]” requirement of the statute. In this scenario, the determinationwould rest on whether a court considered the cells “a substantialportion” of the parts of a diagnostic test; as the test and diagnosis couldnot be made without them, it is likely such a component could be“substantial.” In the scenario where a U.S. lab would take samples andperform tests, but then send data abroad to be interpreted, the analysis issimilar. Because many diagnostic tests are protected by process patentsthat include the identification of a particular genetic type and the subsequenttreatment for that specific type, the export of test results is still verymuch in the realm of that process patent. In this case, liability would fallunder § 271(f)(2), because the data containing the results is especiallyadapted for use in a particular invention, and the requirements of thestatute are clearly met when a hospital abroad is dealing with such aspecialized area of medicine. As to the possibility of a hospital abroadpurchasing compounds that make up a diagnostic test from a U.S. basedcompany, liability could attach under either § 271(f)(1) or (2). If aU.S. company sells a very specific compound whose use is limited to aparticular test or treatment process, that company could be liable under§ 271(f)(2) for knowingly supplying a component of a patented invention