Telehealth is transforming the healthcare industry. As the telehealth landscape continues to evolve, and services and software platforms exponentially grow during the worldwide pandemic, choosing the right intellectual property (IP) protection for telehealth innovations is critical. Technology companies and practices understand the importance of trademarks for branding themselves and their products but few understand the importance of protecting telehealth IP with a portfolio of patents, copyrights and trade secrets. Even fewer avail themselves to the strategic potential IP offers to minimize their competition and attract capital and investors. High profile IP disputes such as Teledoc v. Amwell[1] and Cellspin v. Fitbit[2] have prompted increased awareness of the importance of defining IP rights in the digital health space. While non-disclosure agreements (NDAs) are important tactics to protect IP, it is important to distinguish between your trade secrets and patents and/or copyrights. NDAs work in conjunction with patents, copyrights and trade secrets.
Trade Secrets
Trade secret protection is useful where the product may not be patentable, for proprietary compilation of healthcare data, or to keep specific commercial embodiments secret. If your product can be reverse engineered easily by your competition, trade secret protection is not the best strategy. Trade secrets must be kept secret. Once the trade secret is public or not treated as a secret, others are free to use it for their own purpose. The relative lack of expense for this type of IP protection renders it popular with healthcare companies. We have seen a tremendous increase in trade secret litigation.
Copyrights
A copyright is useful to protect software since it prohibits others from copying the software’s source code. The limitation, however, is that a copyright does not protect the functionality of the software. Only patent protection can do that.
Patents
Not only does patent protection enhance a company’s valuation and attract investment from venture capitalists and others, but patenting technological functionality improvements and devices creates a monopoly that excludes others from using the technology. Functionality such as AI and specifically programmed devices and apps such as those involving remote patient monitoring are often patent eligible. The platform itself may be patentable.
Leveraging the right combination of IP allows a company to gain a competitive advantage, navigate challenges and make the most of opportunities.
How Can Frier Levitt Help
Our telehealth and IP team are experienced in telemedicine IP protection including IT, systems leveraging large data sets, algorithms, and AI. We assist healthcare professionals to more efficiently care for patients and companies to strategize the potential that IP offers.
[1] Teledoc v. American Well, 1:2020 cv 01377, U.S. Dist Ct, DE, Filed Oct 12, 2020.
[2] Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1310 (Fed. Cir. 2019); Cellspin Soft, Inc. v. Fitbit, Inc., 316 F. Supp. 3d 1138, 1144 (N.D. Cal. 2018), rev’d, 927 F.3d 1306.
