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Pieter Van Den Broecke17 June 2009

Overcoming the challenges to eHealth

eHealth: The role of intellectual property rights

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Overview

> What protection is available?

> How do I obtain protection?

> How do I exploit it?

> How do I enforce it?

eHealth: The role of IPR

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eHealth: The role of IPR

Rationale

> to encourage innovation

> bargain between state and innovators

> for making innovation available to public

> in return (quasi-)monopolies granted

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Examples of e-health technology

> blood-tracking devices using RFID tags

> remote diagnosis

> patient monitoring

eHealth: The role of IPR

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eHealth: Example technology

TALKING BOOK TM Patient Monitoring

PC Host Doctor

Patient

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eHealth: The available IPR protection

New technologies, business concepts

> Creation of new IPR:

> Patents

> Know-how

> Designs

> Copyright and software

> Database rights

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eHealth: How do I obtain protection?

Registered vs. unregistered rights

> Registered: patents, certain trade marks and designs

> Need to apply for them

> Unregistered: know-how, copyright, software, databases, other designs

> Arise on creation

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eHealth: Is it exploitable / enforceable?

Hot eHealth topics

> licensing issues

> interoperability

> cross-border enforcement

> software ownership

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eHealth: Licensing

Allowing / acquiring access to IPRs covering particular innovation

Emerging fields of use / new innovations demand flexibility of the terms of the licence agreement (exclusive, non-exclusive, geographical reach, scope, field of use, consideration, duration, etc.)

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eHealth: Interoperability

Proliferation of industry standards, e.g. 3G, MPEG

> Drivers of IP litigation

> SSO policies to strike balance between competing interests of participating firms

> Duty to disclose essential patents

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eHealth: Interoperability

Standard setting processes

> aims to achieve interoperability and product compatibility

> everyone should use IP incorporating the standard

> everyone should pay for such IPR

> possible issues under Articles 81/82 EC Treaty

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FRAND

>Fair Reasonable

>Non-Discriminatory

>Hot issue: can an injunction be issued against the user of a standard that rejected a FRAND offer from the right holder?

eHealth: Interoperability

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eHealth: Cross-border enforcement

Communications structures will inevitably straddle a number of jurisdictions

> E.g. remote diagnosis/patient monitoring

> Where does the infringement take place?

> Where can the patents be enforced?

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TALKING BOOK TM Patient Monitoring

PC Host Doctor

Patient

France Dubai Belgium

eHealth: Cross-border enforcement

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eHealth: Cross-border enforcement

Jurisdictional issues

> Brussels Regulation

> Forum shopping

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eHealth: Software ownership

Who owns the copyright?

> employees v. consultants

> national law

> open source issues

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eHealth: The role of IPR

Concluding remarks

> A set of IPRs is available to protect innovation in eHealth

> Specific legal issues are to be considered, whether related to the IPR at stake or the subject matter to which it relates

> IPRs should be seen as opportunities, not impediments to promoting innovation in the domain of eHealth

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Any questions?