Four Essential Strategies for Internet Healthcare Entrepreneurs to Protect Intellectual Property
No sector within the startup ecosystem is growing more rapidly than digital health startups. These companies are dedicated to creating cutting-edge innovations that enhance hospitals’ operational management capabilities in clinical practice and improve patient care. Given the intensifying competition in this field and the capital needs of startups, digital health companies should safeguard their innovative technologies through intellectual property law.
However, there are still potential difficulties in obtaining such protection. From a business perspective, startups have very limited resources, which are already heavily consumed by the demands of early-stage operations. From a legal standpoint, recent federal court decisions and related policies of the United States Patent and Trademark Office have made it difficult to secure legal protection for several software-related technologies. Faced with these challenges, digital health companies appear particularly ill-equipped when seeking protection for their innovative technologies.
However, despite these challenges, digital health companies can still implement a range of strategies to safeguard their innovative technologies, as outlined below:
▼Conduct an invention audit
Startups often face budget constraints and the rapid iteration of products and technologies, making it prohibitively expensive to secure patent protection for every innovative technology. However, conducting an invention audit to identify all innovative technologies currently in use or under development that can guide or benefit the company proves highly valuable. After evaluating each invention, the company can proceed to score each technology based on criteria such as the following:
Has this innovative technology provided the company with a competitive advantage?
How Different Is This Innovative Technology from Well-Established Technologies?
The Ease or Difficulty of Reverse Engineering This Innovative Technology
The ability to detect whether competitors have plagiarized this technology
The Value of This Innovative Technology to Competitors, Business Partners, and Licensees
By applying these scoring metrics, companies can calculate the aggregate score for each invention and compare the results to determine which high-scoring innovative technologies warrant patent protection. Startups may choose to protect lower-scoring inventions as trade secrets or opt not to protect them at all.
▼Don’t forget to protect your design
Amidst technological innovation, digital health companies often invest substantial capital in product design, including user interfaces, screens, buttons, fonts, animations, and other enhancements to the product’s appearance. These companies should leverage design patents to protect the product’s form and user experience.
As shown in the figure below, these are two design patents protecting the Apple Watch. Design patents safeguard the aesthetic aspects of a product, including its physical design and user interface design.
Safeguarding product design and technology provides companies with the opportunity to protect users’ entire product experience. The cost of obtaining a design patent is typically an order of magnitude lower than that of a utility patent.
▼When filing a patent application, focus on the underlying technology rather than the content
Nowadays, many patent applications focus heavily on content, which sows the seeds of potential problems. They emphasize the data used (such as healthcare-related data) rather than the underlying technologies that generate or acquire such data.
Emphasizing content may make it difficult to obtain patent grants. When an application is filed, the United States Patent and Trademark Office determines which technological field the application belongs to. As shown in the table below, this classification significantly affects the likelihood of obtaining a patent. The probability of obtaining a patent for applications classified as e-commerce drops from 60–75% to 10%.
Digital health startups should take note, as the United States Patent and Trademark Office (USPTO) has categorized certain digital health applications under its e-commerce domain. To mitigate this issue, specifications and patent applications should focus on the underlying technology rather than the content delivered through that technology. While this approach does not guarantee a specific technological classification, it significantly increases the likelihood of the application being assigned to a more favorable examination category.
▼For disruptive products with numerous innovative inventions, consider filing a comprehensive patent application.
Another patent protection strategy is to file a “comprehensive patent application”—a single utility patent application that discloses multiple innovative technologies of the product. The comprehensive application protects one disclosed innovation, while continuation applications protect the others.
Compared with typical “single-innovation” applications, comprehensive patent applications offer digital health companies the flexibility to file applications encompassing multiple functionalities.
● Conclusion
The aforementioned strategies, along with other approaches applicable to enterprises, can help drive business growth while safeguarding the research and development of new products and services in digital health startups.