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Can patent lawsuits in medical prognosis be? Recent studies suggest that certain features of patent applications themselves tend to correlate with a higher chance that some patents end up in court. Innovation is at the heart of the medical device industry. As with many other industries, if you are not constantly working to introduce new products and technologies on the market, there is a good chance that you will not survive. Companies that are successful, and that continues to survive, are investing millions of dollars in research and development each year to new or improved products. companies that are successful, and that continues to survive, are investing millions of dollars in research and development annually to include new or improved products. Not only that these companies are investing in the development new technologies, they are also investing in the protection of their innovation through the patent system. In fact, for the fiscal year 2006, the United States Patent and Trademark Office (USPTO) has a record of more than 440,000 patent applications, more than twice as high as the number of visitors, ten years ago.

Of course, with the number of patent applications to be filed and the large number of patents every year, it would be logical to expect that the number of patent-related litigation would also increase. The latest statistics from the rule to this logic, since more and more patent holders are turning to the courts to protect their valuable intellectual assets. For example, from 1995 to 2005, the number of patent claims in the United States increased from approximately 1700 to more than 2700, a 58% increase in just 10 years.

But the chances for a plea remains at a low probability basis. While the number of patent cases filed has increased significantly in the last ten years, it is interesting to note that recent studies estimate that on average only about 1% of U.S. patents will be litigated. However, these studies also note a number of characteristics that tend to predict whether a patent should be litigated. These properties are: (1) the number of data, the invention, (2) the number and type of prior art citations, and (3) the "crowdedness" of the technological field. Each feature is described below how the feature relates to the medical device industry.

Number of claims

A patent must be at least an indication of the specificity describes what the applicant as his invention. The claims of the patent are often analogized to the description in a deed to property, both define the boundaries and extent of the property. Because the information the limits of the invention, the applicant has an incentive to the invention by a number of broad claims. But in some technical areas in which there is a large amount of prior art, the applicant may have to the invention by a number of small claims to avoid the invalidity of the art.

As the number of claims in a patent to correlate the probability that the patent will be litigated at some point? Empirical studies have shown that patents process a larger number of claims as opposed to non-litigated patents. In fact, one study found that litigated patents had nearly 20 claims on average, compared to only 13 requests for non-process patents. The researchers identify a number of reasons explain that their findings: the perceived value of the patent and the crowdedness of the field of technology by the patent.

The patent claims are easily the most important part of the patent. It is therefore not surprising that claims are expensive to develop and pursue. Pay more money for a larger number of claims that the patent holder believes a patent with claims more likely worth more. Some researchers conclude that the reason more claims litigated patents are not litigated patents is that the patentee knew of the patent would be valuable, expects the prospect of litigation, and as a result developed a number of claims to help the patent in litigation.

The field of technology through the patent may also explain why patents with a large number of claims are more likely to be litigated. In a crowded field of technology, it is probably more competitors, the development of similar products. Therefore, it seems reasonable that patents covering a large number of claims in these crowded areas tend to conflict with the competitors.

For a general idea of how the number of claims relate to the medical device industry, 50 of the recent patents for endoscopes were analyzed. The results show an average of 17 claims per patent. This number falls somewhere in the middle of the call numbers for litigated and non litigated patents above. It seems more likely, according to empirical studies, that these patents have a higher probability that litigated. In addition to the costs associated with a higher probability litigated, these results suggest that the overcrowded medical values its patents and litigation is expected, with the result on patents, which require a greater number of claims.

Prior Art Citations

Under U.S. patent law, the inventor and any other person who is mainly in connection with the preparation and prosecution of the application has a duty to all available information known to be material to the patentability of the invention. To discharge this duty, patent applicants, typically file what is known as an information disclosure statement, commonly referred to as an IDS. In the IDS, the applicant with all the U.S. Patents, foreign patents, and non-patent literature, they are aware of, and that is for the invention. Even a USPTO patent examiner performs a search of the state of the art and may be particularly art against the applicant that was not previously in an IDS.

When a patent is granted, the state of the art, quotes from the record during the prosecution before the USPTO in the Patent. The researchers have this quote information to the conclusion that the number of prior art citations, which a patent is a good indicator of whether a patent should be litigated. One study found that litigated patents cited on average 14 / 2 U.S. patents, which are not litigated patents cited only 8.6 U.S. patents. The study also showed that litigated patents tend to be cited as prior art by other patents and that patents litigated more self-citations, that is, citations to other patents owned by the same assignee.

How can patents from the medical device industry compare? Even with the small sample of top endoscope patents as a proxy for the medical device industry, the average number of U.S. patents has been cited approximately 37th This is significantly more than the study found, from 14.2 U.S. patents. Does this result mean that the medical device patents tend to be litigated? Not necessarily. The study notes that two categories of prior art citations (citations received and self-citations) are significant predictors of litigation. Although the study does not mention the average for self-citations, they find that litigated patents received an average of 12.2 citations from other patents, compared to only 4.1 citations received, on average, not litigated patents. The average number of self-citations and citations to patents for the endoscope only 1.74 and 0.34, respectively. However, as authors of the study suggest that the large number of prior art citations in this small sample set may indicate that the applicant expects the prospect of litigation and reasonable steps to obtain the patent as strong as possible. Also, the large number of quotations may be due, one tries before art in the crowded and ultra-competitive medical device field.

Crowded Fields

Both of the previously discussed characteristics of the process patents, the idea of crowded technological fields. It may be obvious, but the term "full field" refers to a field of technology, where there are many competitors and many patents granted by the technology. For example, for patents, in a busy area, there are, by definition, more competition and more chances that the patent is litigated.

Under the current U.S. patent classification system, which more than 430 classes, eight classes, it seems, are directly related to the medical device industry. Within these eight categories, there are over 2300 sub-classes in which a medical device, the patent can be. The large number of classes and subclasses seems to suggest that the medical device field, as a whole, would likely be as crowded field. Moreover, most medical device manufacturers are demanding and have a better understanding of the value of their intellectual property. Since innovation is the lifeblood of the industry, it makes sense that the industry provides more protection for their inventions, which leads to more medical device patents issued. For example, more patents in the technological area to a higher likelihood of patent litigation in this area.

At least one study suggests that patents on medical devices are much more likely to be litigated than the average of all patents. The study provides an explanation for why the medical device patents are more in the process of finding that the medical device industry as a whole, view patents as valuable assets.

Conclusion

Patent litigation is indeed on the rise. The empirical studies conducted in recent years, some of the characteristics, the strong predictors of whether a patent should be litigated. A large number of claims and citations of the technique may increase the likelihood of a patent to stop before a court. A full field of technology can also lead to an increased risk of patent disputes.

Due to the current in a crowded field, the medical device industry is likely to be very contentious. Of course, this race to the courthouse is an indicator of the value that the industry as a whole on its innovations and thus its survival.

© 2007, Gallagher & Dawsey Co., LPA April 2007

DISCLAIMER

We hope you understand that we may not be the most accurate legal advice to all inventors in a short article on intellectual property issues. Therefore, nothing in the above is as specific legal advice for each person. This legal advice can only be done by a qualified physician after a careful examination of the individual facts. We ask you to us or another approved professional, before you continue.

About the Author

David Dawsey is an experienced intellectual property lawyer specializing in the prosecution and processes of domestic and foreign patents, trademarks, and copyrights. David is one of the few patent attorneys that is also a Registered Professional Engineer. Besides his legal and technical education, David also has an MBA degree. You can be up to David on the company website http://www.Invention-Protection.com

Gallagher and Dawsey Co. LPA is a unique intellectual property law firm, whose intellectual property practice includes providing advice and services for enterprises and individual inventors, as well as other law firms, regarding patent, trademark, copyright and trade secret issues.

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