The Dark Side of Altruism in the Context of Patent Incentives: Are You Really Here for Me? Taking Off the Rose-Colored Glasses

Abstract

Intellectual property rights exist to create self-renewing incentive structures that continually replenish the push for product improvement and innovation investment. This Paper turns the traditional analysis on its head by considering tort-like liability of patent holders for victims of product defects, specifically, robotic medical devices. Robotic surgical devices, or da Vinci robots, are gaining popularity in the medical community – despite, and perhaps due to, the novelty of remote surgical technology. However, the complexity lies not in the application of tort law to the United States patent system. The uncertain fit of tort law within patent law will remain for future discussion. In fact, the liability treated in this Paper is identified as tort-like, precisely to avoid the clumsy applicability of tort law to patent holders. Rather, the recent expansion in geographic scope of patient care – via wireless control, or disintermediation – creates the situation this Paper seeks to illuminate: A physician operating from California using a patented stint-placement in complex heart surgery on a patient in Guam, is sued when the stint-placement malfunctions and ruptures. The patient lives but, due to loss of blood to the brain, will live out the remainder of her life with significant neurological damage. In this case, who makes this patient whole? This Paper concludes by considering the difficultly involved when contemplating tort-like liability for injured patients, assuming robotic surgical malfunction.