Telemedicine Companies Can Use Patent Law as a Strategic Advantage

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Foley & Lardner LLPThis is the first of a multi-part series on how telemedicine and digital health entrepreneurs can better avail themselves of patent and intellectual property strategies to gain a competitive advantage and increase the asset valuation for their company.

As telemedicine services and associated software platforms become more commonplace during the worldwide pandemic, healthcare entrepreneurs and technology companies are looking for ways to gain a competitive advantage in the marketplace. Intellectual property, particularly patents, are a powerful way to protect innovations and exclude competitors from using key features, but most telemedicine companies have not availed themselves of the full strategic potential offered by patents. This article discusses some new and different ways telemedicine entrepreneurs should look at patents.

Patent protection may increase the valuation of a telemedicine company by attracting investments from venture capitalists, angel, and other investors or by distinguishing a product or service that leads to better customer or market share. In many cases, intellectual property may be one of the most valuable assets of an early stage telemedicine company. Under the U.S. Patent Act, one can patent “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Software products, including various aspects of telemedicine platforms, are generally eligible to receive patent protection provided those innovations satisfy the technical requirements.

Generally, an invention is entitled to a patent when it is new, useful, and non-obvious. If an invention is not exactly the same as what was publicly known before a patent application was filed, it is considered “novel.” The invention must also be a non-obvious improvement over the prior art. Obviousness may arise from a combination of two or more items of prior art, or it may be a variation of a single piece of prior art. To be non-obvious, the differences between a new invention and the prior art must not have been obvious to a person having ordinary skill in the type of technology used in the invention at the time of filing the patent application.

Some consultants prematurely dismiss patentable opportunities under the erroneous assumption that such innovations are ineligible “business methods.” It is true inventions that use a computer to replicate/automate human activity or merely apply a conventional activity to a computer may not be patentable. For example, using a computer to store and transmit electronic health records or making those electronic health records available on the Internet are likely to face such a challenge. Processes that can be performed in someone’s mind or utilize the generic functionality of a computer do not rise to the requirement of patent eligibility. On the other hand, a successful patent strategy may focus on the computer’s new functionality that improves the telemedicine platform beyond the typical enhancements of a computerized process. This new functionality might even appear in backend processes, user-facing interfaces, or other aspects of the platform. These functionalities are potentially ripe sources for patent protection.

Take, for example, the use of artificial intelligence in health care services. Artificial intelligence represents a growing area of technological improvement in the operation of computers, and various industries are adopting artificial intelligence algorithms. The “intelligent” nature of artificial intelligence may be a key to patent eligibility. Training an algorithm or the use of machine learning allows a computer to refine a process in a way that must be rooted in computer technology and not just a mere application of a known process to a computer. Training a machine learning model to monitor patient symptoms and communications to provide a customized user interface on a telemedicine platform can be a process that is rooted in computer technology. As another example, routing user requests using a trained machine learning model based on each user’s unique characteristics can be a process that is rooted in computer technology. Other software systems that do not employ artificial intelligence may still be eligible for protection, though the use of artificial intelligence can increase the likelihood of obtaining a patent.

The general key functions of a telemedicine platform may not be sufficiently specific for patent eligibility. But many providers use software innovations as a tool to implement and offer better services, such as by providing more effective communication and connectivity between participants, data manipulation, data masking, and encryption to comply with various regulations. Each of these concepts may potentially be patentable.

Another aspect of patentable protection includes specifically-programmed hardware devices (e.g., RPM or remote patient monitoring) or diagnostic peripherals used in virtual care. These hardware devices may monitor a patient’s activities, blood, insulin, cholesterol, weight, and the like. Software applications can automatically retrieve and analyze biometric data received from various electronic devices (e.g., smart watches). A patient may utilize a remote diagnostic device that provides information that was conventionally provided in-person. Aside from protecting aspects of the device itself, the collection, analysis, and presentation of this data may also be patentable. A monitoring device that increases collection of data from a patient upon detecting a potential issue may be patentable. Providing a secure connection between a medical device operated by a patient and a telemedicine platform (or a computer of a medical professional) to prevent data alteration or manipulation may potentially be patentable.

One company’s telemedicine platform may be distinguishable from competitors because of a particularly well-designed user interface. The look and feel or different visual characteristics of a telemedicine platform can be patentable based on the functionality, the appearance, or both. The user interface may be particularly interesting if it displays data in a uniquely compelling manner, makes diagnosis easier, or allows easier use by a patient. People often prefer certain videoconferencing platforms over others due to a delightful user interface, and not the processing performance, of the software. Those are distinctions that could qualify for patent protection.  

The first step in the process is to determine if the platform is patentable. That involves identifying patentable features that are directed towards specific inventive aspects of a product, rather than the entire product. It typically requires the company to determine how the product is advantageous when compared with competitor products and which new features may be implemented down the road. The identification of the patentable features can form the basis of an initial patent strategy. Ultimately, telemedicine entrepreneurs should take a bit of time to examine the technology component of their technology-enabled services, and explore how the use of patents can give their company a strategic competitive edge.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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