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Federal Judge Rejects Patent at Center of Medical Controversy

April 1, 1996

WASHINGTON (AP) _ A patent that could have forced surgeons to pay royalties every time they performed no-stitch cataract surgery _ and actually prompted Congress to consider banning such medical patents _ has been rejected by a federal judge.

Dr. Samuel Pallin of Sun City, Ariz., said he invented no-stitch cataract surgery by making a frown-shaped cut on a patient’s eyeball in 1990. He won a patent for that cut.

But opthalmologists pointed to articles in medical journals showing that other doctors used slightly different slices to remove cataracts without needing stitches before Pallin did.

So Pallin sued some Vermont eye surgeons who performed the operation, and said he planned to charge royalties for millions of no-stitch cataract surgeries.

Last week, U.S. District Judge William Sessions III of Burlington, Vt., declared the lawsuit’s claims invalid, and forbade Pallin from enforcing any no-stitch patent claim against any doctor or medical center.

``Physicians need to be able to practice medicine without the fear of a patent infringement suit hanging over their heads,″ said Dr. Jack Singer of the Dartmouth-Hitchcock Medical Center, the subject of the suit.

Pallin’s attorney did not return a telephone call Monday. But Pallin, in a statement, said he won a moral victory.

``My goal from the beginning of this controversy and in this litigation was to demand and achieve recognition for a contribution which I made to the profession in early 1990,″ he said. ``That goal has now been achieved.″

At issue is patenting not the drugs or machinery a doctor uses, but the actual steps he or she takes to diagnose or treat a patient.

Traditionally, doctors get credit for new techniques when their work is published in medical journals. Colleagues offer improvements and surgeons adopt and adapt the methods based on public dialogue.

But recently, U.S. doctors have begun seeking ``medical methods patents.″ Pallin filed the first lawsuit to enforce such a patent, prompting doctors’ organizations to declare the patents unethical and a means of driving up health care costs.

Some 80 countries prohibit this type of patent, and Congress is considering restricting them here as well.

Legislation proposed by Rep. Greg Ganske, R-Iowa, himself a surgeon, would ban such patents. A Senate compromise by another doctor, Sen. William Frist, R-Tenn., would allow the patents but would prevent infringement lawsuits against competing doctors.

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