Patents

HOW DOES A PHYSICIAN PROTECT HIS/HER IDEA?

Intellectual property, specifically patents, is the vehicle most medical device companies rely on to create barriers to competitors copying an idea or device. As such, medical device companies will expect any idea that you present to them for funding or distribution to have reasonable patent protection. Some large medtechs will not even speak with a physician about an idea unless their patent is public information. The patenting process is simple in principle, but complex in execution, often with a long, arduous pathway to gaining a patent issuance. And, once your patent is issued, it may only protect a specific embodiment of your idea, leaving loopholes for companies to make a minor modification and avoid your patent barrier. Clearly, you will need strong patent legal counsel to navigate this field, but here is a basic introduction.

Once you have an idea that can be described with words and illustrations, a provisional patent can be filed for a small fee. The provisional patent allows the inventor one year to flush out the idea and file a full application. There are two basic types of patent applications: an apparatus and a design patent. You will likely focus on the apparatus patent since the design patent is specific to the ornamental look of a design. Despite its name, in the US an apparatus patent, also called a utility patent, can protect a method or an apparatus. Foreign filings, usually through the Patent Cooperative Treaty (PCT), do not accept method applications. The PCT is typically the gateway to gaining patent approval in the European Union and sets the stage for much of the remaining world.

Much of a patent’s content is filled with a “specification”. The spec describes much of the details around your invention. A lawyer will then create “claims” based on the spec that state definitively what the patent is protecting. If a competitive company can make an alternate design that is contrary to any portion of a claim, it will not infringe your patent. Thus, receiving a patent for a new scalpel with a ceramic blade does not necessarily mean that no company can make a ceramic blade scalpel unless the patent has claims that are broad enough to encompass the competitive ceramic blade scalpel.

To learn more about patents, check out an article in Physician News Digest called “Patent laws for physician inventors” By David Gornish, Esq.