The medical app market in the US could be about to skyrocket. But Thomas Prock, partner, Marks & Clerk explains why it’s so much harder to patent an app than a device, and why the UK has the potential to get it right.
App design
Apple’s recent announcement that it will be opening its health records application programming interface (API) will be big news for healthcare app developers in the US. The data covers patients at more than 500 hospitals and clinics and it’s hoped that, by making the data available, a new tranche of apps and products will be developed focused on helping patients better manage medications, care plans and long-term conditions.
Digital health is a growing field and there is no doubt that better and more sophisticated apps, underpinned by better and more sophisticated data, have the potential to make a real difference to people’s health outcomes. Alongside technical challenges, developing successful apps also poses significant business challenges such as how to monetise the app and crucially, how to secure the time and money invested in developing it with robust intellectual property (IP).
Patents are the best-known means of protecting an invention from imitation. Apps however, as with software in general, are not always easy to patent. The reason for this is that patents are designed to protect technical innovations and not all apps can be considered ‘technical innovation’. Many apps are based upon the presentation of data in novel ways – an app might harvest data from other sources to show you the location of the surgery of a medical practitioner having a desired qualification in your local area for example. While there is no doubt that many successful apps have been based upon such principles, the innovation here is more one of imagination than technical advances.
Defining what constitutes technical innovation as far as apps go, and what doesn’t, isn’t always easy, though based on well-established principles. Generally speaking however, the most patentable apps will be those that find technical solutions to the technical challenges of utilising healthcare data. It is expected that machine learning will play a significant role in this.
Where patents aren’t appropriate, IP protection remains vital to locking in the value inherent in the development and launch of an app. In the absence of or in addition to patents, trademarks provide a vital means of protecting software innovation. Over time, as an app develops and grows its user base, its brand will acquire ‘good will’ and a degree of faith in the service it provides. Like any IP, this good will is an asset which can be protected and which is central to the value of an app. Should a third party app undermine this good will, for example by launching a rival product so similar as to confuse consumers, then well protected IP will allow action to be taken.
Registering a trademark for an app should be one of the first steps for any developer – especially in the case of healthcare apps, where trust and confidence in functionality, and the ways in which sensitive medical data is being used, is so important.
While the majority of an app’s intellectual property will likely be covered by patents and trademarks, the app may also have an element of design. In this instance, developers might also consider registering designs, which is cheap and quick and also significantly easier for developers in the UK since the UK ratified the Hague Agreement earlier in the spring. Membership of Hague means a design registered in any of the Agreement’s signatory states, is protected in all other signatory states – of which there are more than 60.
It will be interesting to see how Apple’s experiment in the US unfolds, and whether we see any similar initiatives in the UK (imagine for a minute how much healthcare data the NHS must be sitting on). The challenge for developers will be to use the data and develop apps which can corner a section of the healthcare market, and develop products patients can trust. Intellectual property will be central to meeting these challenges.
