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The Interception of Medicine and Intellectual Property

10.04.09 written by

One of the cornerstones of modern medicine is development of new technology for diagnosing and treating patients. In order to make development worthwhile, new technology needs to be protected from being copied, so that the cost of development may be recouped. That’s where intellectual property comes into the picture. Intellectual property is a catchall name for patents, trade secrets, copyrights and trademarks. In medicine, as in other professions, it’s helpful to have an understanding of these areas of protection, since they serve to protect new development and other information that is important to any practice or business.
 Patents protect a new, useful and non-obvious idea or invention that is embodied in a product or process. For example, patent protection may extend to pharmaceutical compounds, the structure of surgical devices, and the steps of new diagnostic processes. In order to obtain a patent, an application that describes the invention must be filed with the U.S. Patent and Trademark Office, and the Office then examines the application to determine if a patent will be allowed to issue. If a patent does issue, it will typically be in force from its issuance until 20 years from the filing date of the patent application. It’s prudent to realize that a patent application must be filed within one year of an offer for sale or a public disclosure of the invention, or any U.S. patent rights may be lost.

Trade secrets protect information that is not generally known and not readily ascertainable by others and is subject of reasonable efforts to maintain its secrecy. Trade secrets may include in-house processes, chemical formulas and patient/customer lists. A trade secret does not require any registration and may last forever unless the information is disclosed to the public or is legitimately discovered by someone else.

Copyrights protect original creative expression in literary, musical, and artistic works, and protection may extend to journal articles, sketches, brochures, and website designs. Copyright affixes the moment the work is created and lasts for the life of the author plus 70 years; or, if the work is a “work for hire,” until 95 years from first publication or 120 years from creation of the work, whichever expires first. Federal registration is not strictly necessary, but maybe prudent, as it typically is needed to bring an enforcement action. It is important to remember that a copyright is owned by the creator of the work, and the work is a “work for hire” only in certain limited circumstances. Thus, it is best to obtain ownership of a copyright by an assignment of rights from the creator of the work.

Trademarks are names, words or symbols used to identify or distinguish the trademark owner’s products or services from the products or services of others. Examples of trademarks include practice group names that are associated with specific services, brand names, tag lines, logos, and, in some cases, Internet domain names. Trademark rights generally are acquired by adoption and use of a mark. Federal registration is not absolutely necessary but is recommended because it provides additional protection. A trademark may provide perpetual protection, as long as it is continuously used.

In the medical field, it’s beneficial to realize that patents, trade secrets, copyrights and trademarks may be employed to enhance offerings and to provide a competitive advantage. For example, patent and trade secret protection may be used to protect new products, processes and services, encouraging development of new technology. Trademark and copyright protection may improve patient/customer recognition of a provider’s products, processes and services, and all of these mechanisms may deter copying by others.

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.