Innovation in the healthcare field is everywhere. Medical devices, mobile apps and other medical software, diagnostics, therapeutics, biotech, telemedicine, electronic health records, and more, are the focus of constant efforts to improve the delivery of services and patient outcomes. The time and expense to bring such innovation to market is often greater than in other industries, with challenges arising from extended buying cycles, regulatory approval, and the intensive nature of the R&D.
Given the substantial upfront investment, it is important to have a sound IP strategy from the early stages of product and business development. You should identify whether your technology can be patented before your development process begins. Establishing trademark rights before investing in a brand is key. Knowing what elements of your product may be protected by trade secrets is essential to maintaining their protection.
A patentability search or patent landscape search can help evaluate whether there is white space to create a protectable invention. A freedom to operate search can help identity potential infringement issues and help the design process. If obtaining a patent is an option, developing the appropriate strategy is key.
If an invention cannot be patented (or sometimes, even if can be), it may warrant trade secret protection. Obtaining such protection requires establishing policies and procedures before any confidential information is shared. Such policies and procedures include defining the trade secret (as opposed to attempting to treat everything as confidential), using tailored non-disclosure agreements, and limiting disclosure within the business to only those employees that must have access to the trade secret information.
A common health care example of a trade secret is software algorithms.
Copyrights in the health care space are most commonly used to protect licensable protocols for implementing technology and processes. They can also be used to protect software, videos, websites, and marketing materials.
As with many industries, the brand is often a health care innovator’s most valuable IP. This makes it important to protect one’s own brand and avoid infringing another’s.
Trademark searches and opinions can help a business identify a unique brand; one that is a low risk to infringe others’ rights and more likely to be protectable itself. Registering the appropriate trademarks can then help to perfect those rights.