Health-related Device Industry Patent Litigation Probably To Rise?

Can patent lawsuits within the medical device market be forecast? Current research suggest that specific attributes of patent applications themselves tend to correlate using a higher chance that some patents will find yourself in court. Innovation is in the heart in the health-related device market. As with several industries, in the event you are certainly not constantly operating to bring new solutions and technologies to the market, there's a great opportunity you'll not survive. Firms which might be profitable, and that continue to survive, invest millions of dollars in research and improvement each year to create new or much better solutions. Companies that happen to be profitable, and that continue to survive, invest millions of dollars in research and improvement every year to create new or far better products. Not just are these businesses investing in the improvement of new technologies, they're also investing inside the protection of their innovations by way of the patent program. In truth, for fiscal year 2006 the United states of america Patent and Trademark Workplace (USPTO) reported a record of more than 440,000 patent applications filed, a lot more than double the amount of applications filed ten years ago.

Of course, with the record quantity of patent applications becoming filed, along with the large number of patents issued every year, it could be logical to anticipate that the number of patent connected lawsuits would also boost. Current statistics tend to substantiate this logic as far more and much more patent owners are turning towards the courts to help guard their important intellectual property assets. By way of example, from 1995 to 2005, the amount of patent lawsuits filed inside the United states of america improved from around 1700 to a lot more than 2700, a 58% boost in just 10 years.

Having said that, the probabilities of a lawsuit stay low on a probability basis. Though the number of patent suits filed has substantially improved more than the previous ten years, it is interesting to note that current research estimate that on average only roughly 1% of U.S. patents will likely be litigated. On the other hand, these studies also note a number of characteristics that tend to predict irrespective of whether a patent is likely to become litigated. These traits include: (1) the number of claims describing the invention; (two) the quantity and forms of prior art citations; and (3) the "crowdedness" in the technological field. Each and every characteristic is described below, like how the characteristic relates towards the medical device industry.

Variety of Claims

A patent have to include things like at least one particular claim that describes with particularity what the applicant regards as his invention. The claims of a patent are generally analogized to the home description in a deed to real estate; both define the boundaries and extent in the property. Since the claims set the boundaries in the invention, the applicant has an incentive to define the invention via several broad claims. Even so, in some technological areas where there is a vast quantity of prior art, the applicant might have to define the invention by way of a number of narrow claims to prevent the invalidating prior art.

So how does the number of claims appearing within a patent correlate for the likelihood that the patent will someday be litigated? Empirical research have found that litigated patents involve a larger quantity of claims as opposed to non-litigated patents. The truth is, a single study determined that litigated patents had almost 20 claims on average, compared to only 13 claims for non-litigated patents. Researchers cite a couple of causes that enable visit us  explain their findings: the perceived value with the patent and also the crowdedness of your field of technology protected by the patent.

Patent claims are simply probably the most essential part of the patent. Therefore, it really should come as no surprise that claims are high priced to draft and prosecute. Paying extra money for a bigger variety of claims suggests that the patentee believes a patent with a lot more claims is likely to be much more useful. Even so, some researchers conclude that the cause litigated patents have extra claims than non-litigated patents is that the patentee knew the patent could be precious, anticipated the prospect of litigation, and consequently drafted much more claims to assist the patent stand up in litigation.

The field of technology protected by the patent may well also explain why patents with a big variety of claims are far more likely to become litigated. Inside a crowded technological field there will likely be far more competitors who're developing equivalent products. Therefore, it appears to make sense that patents obtaining a sizable quantity of claims in these crowded fields are far more probably to conflict with competitors.

To be able to get a common idea of how the number of claims relate to the health-related device business, 50 with the most not too long ago issued patents for endoscopes were analyzed. The outcomes show an average of 17 claims per patent. This quantity falls someplace in the middle with the claim numbers for litigated and non-litigated patents cited above. It would appear much more most likely, as outlined by the empirical studies, that these patents may have a higher likelihood of being litigated. Additionally to getting a larger opportunity of becoming litigated, these outcomes could indicate that the crowded medical device business values their patents and anticipates litigation, with the finish outcome becoming patents obtaining a larger number of claims.

Prior Art Citations

Below U.S. patent law, the inventor and just about every other person who is substantively involved inside the preparation and prosecution of an application has a duty to disclose all info identified to be material towards the patentability from the invention. To discharge this duty, patent applicants usually file what exactly is referred to as an details disclosure statement, frequently referred to as an IDS. In the IDS, the applicant lists all of the U.S. patents, foreign patents, and non-patent literature that they are conscious of and which is relevant to the invention. Also, a USPTO patent examiner conducts a search of the prior art and might cite prior art against the applicant that was not previously disclosed in an IDS.