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How Digital Technologies are disrupting Healthcare

Intellectual Property (IP) has always been a key building block for successful healthcare businesses. However, as blockbuster patents on small molecules are becoming a thing of the past, IP in healthcare will need to evolve to meet the challenges of tomorrow. This is particularly important when considering the opportunities and challenges presented by the digital revolution, often referred to as Industry 4.0.

Digital technologies have already revolutionised many aspects of our lives. This revolution is set to continue and healthcare companies are thinking more and more about how it will affect their businesses in the coming decades.

In just one example, the possibilities for using smart, connected and wearable devices are exciting and numerous. In the future, even the humble toothbrush is likely to be loaded with sensors and connectivity. Imagine a situation where accelerometer, temperature and pressure data from brushing were automatically uploaded to your dentist’s server from a smart toothbrush synced to your mobile phone. Big data analytics may be used to compare your data with those of similar patients, allowing issues to be identified, and appointments to be scheduled before problems even occur. Similar techniques may be developed using wearable devices such as Fitbits so that every move and activity can be monitored. Although the implications of this level of surveillance may seem daunting, the data generated may be vital for enabling truly patient-specific care.

Augmented reality (AR) techniques also offer opportunities in the healthcare sector. Surgeons wearing AR devices may be assisted in the operating room, decreasing the time required for operations and improving the success rate of operations. In fact, techniques already exist today in healthcare AR. US company Accuvein has produced a scanner that can allow a visualisation of a patient’s veins overlaid on their body and this can be used to assist nurses in finding a vein successfully when injecting drugs or taking blood samples.

All of these new technologies are underpinned by inventions, and many of these inventions are likely to qualify for patent protection. It is not yet clear which companies will make the most of these new technologies. However, the future players are likely to be those who have a significant ownership interest in the intellectual property. Much of this IP will be focused on digital technologies. Therefore, traditional healthcare companies will need to gain new skills if they hope to be serious competitors in this space.

Healthcare companies will need to get to grips with the requirements for patentability in computer-implemented technologies. In fact, they might need to recruit professionals with expertise in this area since there are major challenges in obtaining patent protection of software.

Patent law as it relates to software and computer-implemented inventions (CII) was written back in the 70s when computers were still in their infancy. Programmes were written on punch cards and could be protected by copyright. The law has evolved to deal with modern CII patents, but it remains a challenge to obtain protection. In Europe, a patentable CII is one that can achieve a technical effect or solve a technical problem. In a driverless car system, for example, there is likely to be a host of patentable inventions. Inventions that monitor conditions outside the car and feedback loops that control braking, road position and speed will often be patentable, even though they are embedded in software, because they have a technical impact on the physical world.

Likewise, a scanner that can allow visualisation of veins is likely to include several patentable features, as evidenced by Accuvein’s growing portfolio of patents and patent applications. Conversely, uploading accelerometer data from your toothbrush to your dentist’s server is likely to be difficult to protect: fundamentally, this invention is simply a transfer of information from one place to another, which may be useful, but does not overcome any technical problem. A wide variety of inventions will sit in the middle, close to the patentability threshold. Expert advice is needed on these inventions to find the right strategy to secure protection for the business.

A different strategy will also be needed for seeking international protection of this type of invention. Historically healthcare companies would look to obtain protection in large numbers of countries because the market in each of these counties might be large enough to justify the costs of patent protection. The same logic cannot be applied in computer-implemented inventions including the internet of things because the “invention” may be performed in a distributed fashion by a number of participants around the world. Aspects of the invention may be undertaken by a user in a first country, a device in a second country, and a server in a third country. Patents can only be obtained country-by-country, and the international patent system was not conceived to deal with multi-jurisdictional inventions of this kind.

An effective patent for these inventions must be mapped onto the participants, and typically protection should be focused on key markets such as Europe and the US (assuming that the requirements for patentability can be met). In some cases, if the invention can be performed on a server located anywhere in the world then a better strategy might be to maintain secrecy, rather than filing a patent application, which might involve a change of mindset for some who are involved in healthcare IP.

Opportunities abound within digital technologies, and it will be exciting to see how the future will look. The challenge for existing healthcare companies is to acquire new skills in digital technology so that they can play their part in this future.

Peter Arrowsmith
is a Partner at Gill Jennings & Every LLP and will be speaking on IP in Digital Technologies at the upcoming European Life Science Innovation Congress.

Download the agenda to see what else will be discussed at the event. 


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