Why every medical practice should care about intellectual property

As a service provider, you know the name and reputation of your medical practice goes a long way toward the success of your practice. But are you aware that Intellectual Property is one of the most important business assets you have. Intellectual property refers to the legal field that involves protection of creations of the mind and may take many different forms.

As a service provider, you know the name and reputation of your medical practice go a long way toward the success of your practice. But are you aware that Intellectual Property is one of the most important business assets you have? Intellectual property refers to the legal field that involves the protection of creations of the mind and may take many different forms. More than one type of intellectual property can be used to protect your medical practice. You can have a patent on a drug or device used in a procedure, a trademark on your practice’s name and logo, a copyright on your website content or a publication, and, in some jurisdictions, your patient list may constitute a trade secret.

1. Types of Intellectual Property

Trademarks, Copyrights, Patents, and Trade Secrets

Trademarks- A Trademark is a distinctive word, name, slogan, symbol, sign, symbol, or combination of these that serves to identify the particular source of products or services and distinguish it from other similar or competing products.

Copyrights – Copyright protection grants exclusive rights of use to the authorship of an original work.

Patents – Patent protection grants exclusive rights of use to the invention of or discovery of any new and useful process, the machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.“Anything under the sun made by man.”

Trade Secrets –Trade Secret protection grants exclusive rights of use for any formula, practice, process, design, instrument, pattern, or compilation of information that is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.

Trademarks

Healthcare is no longer localized. More and more practices are national. Virtually every medical practice, other than those whose name is just that of the owners, should trademark its name. A trademarked name and logo brands all of your products and services ensure that consumers do not get confused, and protect you from counterfeit products as well as imposters. A trademark allows patients to locate you more easily on the Internet and social media platforms. Trademarks are especially important for startups to create brand recognition. Via an “intent to use” designation, they can even be obtained for goods and services which your business is planning to offer in the future.

However, the value of trademarks goes way beyond use as a marketing tool. Trademarks are a valuable business asset- a source of revenue through licensing, are a crucial component of franchising agreements and are useful for obtaining third-party financing.

Enforcing Your Trademark

Enforcing a trademark consists of scanning for and pursuing adverse users and filing a “cease and desist” letter. It is also important to use your mark in commerce so it is not deemed abandoned.

Copyrights

People often use copyrights and trademarks interchangeably but they are really different. Copyrights grant exclusive rights of authorship of original works. If you want to protect a publication, computer software, an entire blog post, your website content that is original works, or a photo you need a copyright; if you want to protect your brand, you use a trademark. Without filing for a copyright, you have no legal leverage against someone who decides to plagiarize your work and pass it off as their own. The better your website is, the more likely a competitor is to copy it. While you can use the © symbol even if you have not filed a copyright, you cannot obtain statutory damages and attorney fees.

When you have working agreements with contractors, such as Website developers and software system developers, you need to make it clear as possible who owns what. Be careful with work-for-hire language. Joint copyright ownership is to be avoided since all owners have equal rights, including the right to commercially exploit the Copyright, provided that the other owners get an equal share of the proceeds. Each party can grant non-exclusive licenses and commercialize the content but must share profits (absent an express agreement to the contrary).

Derivative Works

A derivative work is a work based upon one or more preexisting works. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”Derivative works are improvements to what is copyrighted using the background copyrighted material. The original co-owners are entitled to profits from the derivative work. However, issues often develop as to what amount of the derivative was original copyrighted material and how much of the profits need to be shared.

Patents

Patents grant exclusive (monopoly or exclusionary) rights to making, using, selling, offering for sale inventions or discovery of any useful process or article or composition, or any new and useful improvement. If you are an investor, then you need a patent. However, obtaining a patent is not an easy process and is quite expensive. The great thing about patents is whether you are a small entity or a large company, you still get a monopoly. Patents allow small companies to prevent large companies from competing against them and selling a competitive alternative. If competitors do try to enter the marketplace, you can sue and have them disgorge profits.

2. Patenting

Creates a monopoly for 20 years
Utility Patent- product or process
Design Patent- ornamental aspects
Beware of marketing an invention before filing a patent application
Patentability bars exist for public use, printed publication, offers for sale
Can increase profits and prices
Patents are best where there is a large or fairly large market

Trade Secrets

A trade secret is an information that a company chooses not to share and is only valuable as long as it remains a secret. If you're maintaining some intellectual property as a trade secret, nondisclosure agreements with your contractors, manufacturers, distributors, as well as anyone else who came into contact with the secret. Disadvantages of trade secrets include the possibility someone will discover your secret by reverse engineering or some other process. Trade secret litigation has been on an upward trajectory each year with the healthcare sector seeing one of the steepest increases, especially for computer technology, customer lists, proprietary pricing, and supplier relationships. A well-thought-out analysis is required before you decide to just keep your IP as a trade secret. The advantage is a trade secret is they can last forever.