Why HealthTech Founders Should Patent Their Technology

Healthtech has been on the rise in recent years and the Covid-19 pandemic has flat out accelerated the sector further. Digital innovations have an increasing presence in healthcare and are redefining how and what care is delivered. In fact, a McKinsey survey of European physicians suggests up to 58 percent of them believe telemedicine will play a significantly greater role in the future.

The upward trend of digital healthcare

The expansion of digital healthcare has seen it applied across different parts of the industry. Many digital advances aim to simplify processes through decentralised care, such as removing the need for patients visiting  doctors’ offices to get their new prescription. This has become increasingly important in the Covid era as many vulnerable people have been forced to shield, while also saving time as patients can receive digital prescriptions and organise delivery or pick-up from a local pharmacy at their leisure.

Tools like remote monitoring allow patients to continually – and often passively – input data into a remote monitoring system. Doctors and AI systems can then track the patient’s data, and catch and intervene where necessary at a tipping point indicated by the data . Whether patients input the data manually or automated body sensors take readings periodically, healthcare professionals can monitor and potentially change dosages or treatments based on on-going data rather than on a single read-out taken at infrequent doctor’s appointments.

Beyond this, digital therapeutics provide evidence-based, software-driven therapeutic interventions for the prevention and management of a medical disorder or disease. Companies such as Closed Loop Medicine combine proven drugs with digital therapeutics and, where relevant, devices and diagnostics, through a single prescription enabling the digitisation and data capture of an entire care continuum.


Difficulties with patenting healthcare technology

Patents are important in healthtech to protect innovations and allow companies in the space to stop a third party from copying an idea. Strong IP protection is particularly appealing to investors, as they want reassurance that a company’s product cannot be duplicated by a competitor.

However, healthtech-related patents are a challenge to obtain due to patenting restrictions in Europe. Methods of treatment and diagnosis performed on a human body and AI algorithm programs per se are unpatentable at the European Patent Office which poses problems for some healthtech startups.

Tech companies therefore must ensure their software-related healthtech developments are claimed in respect of the technical effect that they achieve. However, claims should be drafted in a manner that also doesn’t fall foul of the method of treatment exclusion, which can prevent a European patent application being accepted.

Another unique patent issue for healthtech companies is that supporting data and testing are required in the patent application. Often digital healthtech therapies use a combination of drugs and technology. The required supporting data will often come from clinical trials which pose careful timing and trial publication considerations as a patent application must be filed before any public disclosures of the invention are made.

Healthtech entrepreneurs must have the right protections built into their business in order to protect their intellectual property. Checking competitors’ IP is also important, to ensure your products do not infringe other patents in this fast-developing field. These may require entrepreneurs to get in touch with specialists to help file patents to protect their technology and prevent any unexpected surprises along the way as the business, and competition, grow.


Written by Esmé Swindells – Patent Attorney at Potter Clarkson LLP

Esmé Swindells