The IP implications and opportunities of medtech innovation
Tim Hargreaves, partner at global intellectual property firm Marks & Clerk, considers the importance of medical technology and particularly, how the UK’s health sector needs to harness new innovations to boost efficiencies.
There is no doubt that the UK’s healthcare sector has been under unprecedented pressure in recent times. Whilst recent focus has been on strikes, staffing and pay across the sector, following the upheaval of the COVID pandemic, the vital importance of the sector to the UK economy and the importance of medical technologies was recognised in the launch this year of the UK’s first Medical Technology strategy.
Current healthcare expenditure in the UK accounted for 12% of GDP in 2020, with medtech making up a significant amount of this total. According to the UK MedTech Strategy document, the NHS alone spends an estimated £10 billion a year on medtech, and the UK is also a major player in the international market, exporting over £5.6 billion of medtech products in 2021.
We now await the implementation plan for the strategy, with planned achievements for each of the four priority areas of Resilience and Continuity of Supply, Innovative and Dynamic Markets, Enabling Infrastructure, and Specific Market Focusses. What is already in no doubt is that innovation lies right at the heart of the UK’s MedTech strategy.
One point highlighted in the UK’s MedTech Strategy document is the importance of SMEs, with 31% of employment in the medtech sector being in SMEs, which make up over 85% of the companies in the medtech sector.
SMEs need no reminder of the importance of innovation. With a highly competitive market and without the financial resources of larger companies, innovation is often the only way that SMEs can survive and thrive. In turn, that means that is of vital importance that SMEs are aware of the importance of patents and other IP. At the most basic level, without IP there is nothing to stop competitors taking and using a company’s hard-built innovation.
It is therefore vital for SMEs in particular to ensure that their IP strategy meshes with their commercial goals and with their technical innovations. Undoubtedly this presents challenges. On the one hand, IP is essential to ensure that the most important assets, sometimes the only significant assets, of an SME are protected. On the other hand, companies are often financially constrained and building large IP portfolios can be costly.
One example of an SME that has used the IP system to its advantage and has built a strong IP portfolio that has supported its goals from its earliest days is Emblation Limited.
Based on the founders’ decades of cumulative experience in microwave technologies, Emblation has created award-winning treatments and techniques to address various dermatological and oncological conditions. They continue to break new ground exploring the frontiers of research based on subtle ways of affecting immune responses using microwaves, all leading to practical solutions to real life medical problems.
Hand-in-hand with their technical and commercial breakthroughs, which include use of their products across UK, US, Canada, Australia and mainland Europe, Emblation has also built a significant patent portfolio. The patent portfolio has grown with the company and from the earliest days provided a significant source of licensing income. IP strategy has evolved as the company has grown, and the company’s strong IP was a significant strength when obtaining eight-figure investment which is being used to drive international expansion.
A key factor for companies of all scales is to take IP into account at an early stage. The patent system is unforgiving and if inventions are disclosed before patent applications are filed then the chances of obtaining protection can be lost.
For those companies on an IP journey then the question of what can be protected, and how, can sometimes be a difficult one to address. This is where the role of professional advisers can be key, particularly patent attorneys.
Eamon McErlean, CTO of Emblation Limited said: “Emblation chose Marks & Clerk from the outset based upon their reputation as a leading global intellectual property firm with over 120+ years of experience in the IP industry and recognised as one of the top IP firms in the world.”
For large corporates as much as for SMEs, the use of professional IP advisers is particularly important in the medtech area, as it is perhaps unique in the breadth of technical specialisms that can come together to develop a product. Clearly detailed medical knowledge underpins any successful medtech product, but it can often be the case that key innovations can occur in a whole range of different fields.
Perhaps it is the materials from which a product is formed that are innovative, or chemical coatings applied to the product? Or perhaps it is the design or method of manufacture of a particular surgical tool, or a novel approach to treatment or diagnosis? Or perhaps it is the associated software, for example for control, sensing, imaging or other process. Any and all of these areas, and more, can be the subject of patent protection. It is an area where a jack-of-all-trades approach can be risky, and it is often the case that a team of patent attorneys with PhDs in different technical disciplines will need to work together to obtain suitable protection for a company’s medtech products.
A key technology in the medtech area at present is the use of machine learning. There is a misconception that software can be difficult to patent. This is not the case in the medtech field, where in fact software used to perform a particular novel process can sometimes be easier to protect than the process itself. The European Patent Office has provided guidelines on how machine learning inventions may be protected, and specifically mentions methods of diagnosis by way of example as an area where machine learning inventions are protectable.
The protection of machine learning inventions is definitely an area where expert advice is important. There are also various ancillary issues relating to machine learning innovations, for example ownership and use of data, and privacy issues, where there can be traps for the unwary. Despite such challenges, there is something of an IP boom relating to machine learning at present, which the number of patent filings increasing greatly year-on-year. It will inevitably continue to be hot topic in the medtech area, and the UK MedTech Strategy recognises AI/machine learning as an important part of digital and technological transformation in the medtech space.
Regardless of where innovation lies in a medtech company’s products, a vital part of the IP journey is to ensure that the IP strategy of the company supports the commercial strategy, especially as companies grow or priorities changes. Again, if consulted, professional advisers such as patent attorneys can help ensure that cost and time is spent on the most important aspects of a company’s activities and that IP portfolios remain lean and fit-for-purpose.
Tim Hargreaves will be speaking at Med-Tech Innovation Expo on the 7th June at the NEC, Birmingham. His seminar will take place at 2pm on the Med-Tech Innovation Conference Stage.
Register to attend for free on this link.