Medical Device Patent Litigation is likely to increase?

Patent litigation in the field of medical technology can be expected? Recent studies suggest that some features of patent applications with a greater likelihood that some patents end up in court tend to correlate. Innovation is the heart of the medical device industry. As with many industries, if you're not constantly working to bring new products and technologies on the market, there's a good chance that you will not survive. Companies that are successful, and continuessurvive to invest millions of dollars a year in research and development to create new products or better. The companies that succeed, to survive and continue to invest millions of dollars a year in research and development to create new products or better. Not only are these companies investing in the development of new technologies, but also investments in the protection of their innovations through the patent system. In fact, for the 2006 fiscal year, the U.S. Patent andTrademark Office (USPTO) presented a record of more than 440,000 patent applications, provided that more than double the number of applications a decade ago.

Provided, of course, with a record number of patent applications and the large number of patents each year would be logical to expect that the number of patent applications related complaints also increase. Recent statistics tend to justify this logic, as more and more patent holders, the courts are intended to protecttheir valuable intellectual property. For example, from 1995 to 2005 the number of patent cases filed in the United States has increased from about 1,700 to more than 2700, an increase of 58% in 10 years.

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However, the possibility of a lawsuit while 'on the basis of probability. While the number of cases of patent applications has increased steadily over the past decade, it is interesting to note that recent studies estimate that on average only 1% of U.S. patentsprocessed. However, these studies also note a number of properties, to predict whether a patent will probably tend to be processed. These features include: (1) the number of claims describing the invention, (2) the number and type of prior art citations, and (3) the "seal" the technology sector. Every feature is less, including as regards the characteristics described in the medical device industry.

Medical Device Patent Litigation is likely to increase?

Number of complaints

A patent must be at leastargued that describes with specificity what the applicant regards as his invention. The claims of the patent are often likened to the description in a deed of property, both to define the limits and scope of the property. Since the demands of the limits of the invention, the applicant is an incentive for the invention is defined by a series of large claims. But in some technical areas where there is a large amount of prior art, the applicant can establishTo avoid the invention through a series of narrow claims, the state of invalid.

And as the number of applications seem to be related to a patent, the probability that the patent will be treated in a day? Empirical studies have found that patents developed a larger number of claims processed as a non-contrast patents. In fact, one study found that about 20 patents developed arguments were, on average, compared to only 13 patent applications are not processed. The researchers quotesome reasons to help explain their findings: the perceived value of the patent and the limited range of patented technology.

The claims are simply the most important part of the patent. Therefore, should not be surprising that purports to design and expensive to be pursued. Paying more money for a greater number of claims suggests that the patent holder believes that a patent with claims worth more probably more. However, some researchers concludethat the basic patents are processed more claims are not treated as patents, the patent holder would be useful to know the patent, provides the prospect of legal proceedings, and to help as a result of multiple complaints, drafted patent.

The field of technology protected by patents, which may also explain why patents should be treated with a rather large number of complaints. In a crowded field of technology, it is probably more competitors that are developing similarProducts. So it makes sense that patents that have a large number of complaints in this crowded areas tend to conflict with competitors.

A general idea of ​​how the number of claims for the medical device industry for the last 50 issued patents have been analyzed for endoscopes. The results show an average of 17 requests per patent. This number is somewhere in the middle of the call numbers for the patents cited treated and untreatedfirst. It seems likely, according to empirical studies, that patents are more likely processed. In addition to a greater chance handled, can these results show that the medical industry crowded values ​​its patents and anticipates litigation, with the result that patents with a higher number of credits.

Quotes of the first Art

Under U.S. patent law, the inventor and any other person who is involved in the contentin the preparation and prosecution of a request has the duty of all known information material to the patentability of the invention are known. To meet this requirement, patent applications in the control file, and as a statement of disclosure of information, which refers generally known as IDS. In IDS, the applicant lists all U.S. patents, foreign patents and patent literature, who are aware, and that is relevant to the invention. It also performs a patent USPTO examinerSearch for the state of the art and may with the prior art against the applicant, which was not previously known citation in an IDS.

When a patent is granted, the quotes of the art of records during the first charge listed in the patent at the USPTO. The researchers used this quote for information to conclude that the number of citations of art appear in a patent is a good predictor of whether a patent can be processed. One study found that processed an average of 14.2 patents citedPatents in the United States, while only 8.6 unprocessed patents cited U.S. patents. The study also showed that treatment more patents as prior art by other issued patents are cited, and that patents are processed more self-citations, ie citations to patents owned by the applicant.

How to compare patents in the field of medical devices? Even with the small sample of the endoscope cited patents as a proxy for the medical device industry, the average number of U.S.Patents, was quoted as 37 The most significant study is the discovery of 14.2 U.S. patents. This result means that patents for medical devices tend to be treated? Not necessarily. The study found that two specific categories of art earlier citations (citations received and self-citations) as significant predictors of litigation. Although the study did not mention a means of self-citations, he finds that obtaining patents is processed an average of 12.2Citations of other patents, which averages only 4.1 citations for patents were not processed. Were the average number of citations and self-citations received patents for the endoscope only 1.74 and 0.34. However, as the authors of the study suggest that the large number of famous quotations in this set small example can be found to indicate that the applicant is to be expected, the prospect of litigation and has taken measures necessary to ensure that the patent as strong as possible. Alsothe large number of citations can be attempted in the state of the art field crowded and highly competitive medical device to obtain.

The crowded field

Both properties have previously discussed patents developed the idea of ​​crowded technological fields mentioned. It may be obvious, but the term "overcrowded area" refers to an area of ​​technology in which they define many competitors and many issued patents to the technology. Sun patents issued inare crowded area, by definition, more competitive and thus more possibilities that the patent will be processed.

Under current U.S. patent classification, including more than 430 classes, eight classes, apparently, directly linked to the field of medical technology in context. Within these eight classes, there are over 2300 sub-classes, which can be classified as a medical device patent. The large number of classes and subclasses seems to suggest that the medical deviceSector as a whole would, most likely as a crowded field. In addition, most medical device manufacturers are demanding a better understanding of the value of their intellectual property. Since innovation is the lifeblood of the industry, it makes sense that the industry protects more of their inventions, which leads to more medical device patents issued. So, more patents in technology for a greater likelihood of patent litigation in bringing thisField.

At least one study shows that patents on medical devices are much more elaborate than the average of all patents. The study provides an explanation of why patents for medical devices are more likely with the finding that the medical device industry are treated as a whole, view patents as valuable assets.

Completion

Patent litigation is rising. Have conducted empirical studies in recent years, some of the identifiedProperties, strong predictors of whether a patent can be processed. , A large number of lawsuits and increase the state of the art of citations a patent on the ground the possibility of court. A crowded field of technology can also lead to a higher risk of patent litigation.

Through the crowded in a range of products in the medical sector is expected to remain highly controversial. Of course, this race to the courthouse indicator of the value that the industry as a whole placeson its innovations and thus its survival.

© 2007 Gallagher & Dawsey Co., LPA April 2007

DISCLAIMER

Please understand that we do not give accurate legal advice to all inventors in a short article on matters related to intellectual property. Consequently, there is nothing in the above determined as legal advice for any specific person. Legal assistance can be given by a qualified professional, after a careful examination of all circumstances. We ask you to informus or another qualified professional before proceeding.

Medical Device Patent Litigation is likely to increase?