Medical Device Industry Patent Litigation Likely to Rise?

Can patent court cases inside the scientific device industry be forecast? Recent studies recommend that certain capabilities of patent packages themselves have a tendency to correlate with a better danger that some patents will come to be in court docket. Innovation is at the coronary heart of the clinical device industry. As with many industries, if you aren’t continuously running to convey new merchandise and technology to the market, there is a great risk you may no longer live to tell the tale. Companies that are successful, and that hold to survive, make investments thousands and thousands of dollars in studies and improvement each 12 months to create new or higher merchandise. Companies which might be successful, and that maintain to survive, invest tens of millions of greenbacks in studies and improvement every 12 months to create new or higher products. Not simplest are those organizations investing within the development of recent era, they are also making an investment within the protection in their improvements thru the patent device. In fact, for economic yr 2006 the United States Patent and Trademark Office (USPTO) said a record of extra than 440,000 patent programs filed, more than double the variety of applications filed ten years ago.

Of route, with the document wide variety of patent programs being filed, and the large wide variety of patents issued each yr, it’d be logical to expect that the range of patent related lawsuits could additionally increase. Recent information tend to verify this logic as an increasing wholesale Feminine moisturizing gel number of patent owners are turning to the courts to help shield their treasured highbrow belongings belongings. For example, from 1995 to 2005, the variety of patent lawsuits filed inside the United States increased from approximately 1700 to extra than 2700, a fifty eight% growth in only 10 years.

However, the chances of a lawsuit remain low on a possibility basis. While the wide variety of patent fits filed has considerably expanded during the last ten years, it’s far exciting to word that latest research estimate that on average only kind of 1% of U.S. Patents might be litigated. However, those research additionally observe a diffusion of characteristics that have a tendency to are expecting whether or not a patent is probable to be litigated. These traits consist of: (1) the variety of claims describing the discovery; (2) the quantity and types of prior art citations; and (three) the “crowdedness” of the technological field. Each characteristic is defined under, such as how the feature relates to the medical tool enterprise.

Number of Claims

A patent must include at least one claim that describes with particularity what the applicant regards as his invention. The claims of a patent are frequently analogized to the property description in a deed to actual estate; each outline the boundaries and quantity of the assets. Since the claims set the limits of the invention, the applicant has an incentive to define the invention through some of large claims. However, in some technological areas where there is a huge quantity of previous artwork, the applicant might also should define the invention via some of slender claims to avoid the invalidating previous artwork.

So how does the range of claims performing in a patent correlate to the chance that the patent will one day be litigated? Empirical studies have observed that litigated patents encompass a larger variety of claims rather than non-litigated patents. In reality, one take a look at determined that litigated patents had almost 20 claims on average, compared to simplest thirteen claims for non-litigated patents. Researchers cite multiple reasons that help explain their findings: the perceived fee of the patent and the crowdedness of the field of era protected through the patent.

Patent claims are easily the maximum critical part of the patent. Therefore, it ought to come as no marvel that claims are high-priced to draft and prosecute. Paying extra money for a bigger wide variety of claims suggests that the patentee believes a patent with greater claims is in all likelihood to be more precious. However, some researchers finish that the motive litigated patents have more claims than non-litigated patents is that the patentee knew the patent could be precious, anticipated the prospect of litigation, and as a result drafted extra claims to assist the patent rise up in litigation.

The subject of era blanketed through the patent may give an explanation for why patents with a massive quantity of claims are much more likely to be litigated. In a crowded technological discipline there’ll in all likelihood be more competition who are growing similar merchandise. Therefore, it appears to make feel that patents having a massive quantity of claims in those crowded fields are more likely to battle with competitors.

In order to get a preferred concept of the way the wide variety of claims relate to the medical device industry, 50 of the maximum lately issued patents for endoscopes had been analyzed. The effects display an average of 17 claims according to patent. This variety falls somewhere within the center of the claim numbers for litigated and non-litigated patents cited above. It might appear much more likely, in step with the empirical studies, that those patents may have a better hazard of being litigated. In addition to having a better risk of being litigated, these results might also indicate that the crowded medical tool enterprise values their patents and anticipates litigation, with the end result being patents having a larger number of claims.

Prior Art Citations

Under U.S. Patent regulation, the inventor and each different individual who’s substantively involved inside the preparation and prosecution of an application has a obligation to reveal all records recognised to be material to the patentability of the discovery. To discharge this obligation, patent candidates normally record what is called an records disclosure assertion, normally known as an IDS. In the IDS, the applicant lists all the U.S. Patents, foreign patents, and non-patent literature that they’re privy to and this is relevant to the invention. Also, a USPTO patent examiner conducts a seek of the earlier artwork and can cite prior artwork against the applicant that was no longer previously disclosed in an IDS.

When a patent is granted, the earlier art citations fabricated from report throughout prosecution earlier than the USPTO are indexed within the patent. Researchers have used this citation statistics to conclude that the wide variety of earlier artwork citations performing in a patent is a superb predictor of whether or not a patent is probably to be litigated. One study located that litigated patents on common noted 14.2 U.S. Patents, whilst non-litigated patents cited handiest 8.6 U.S. Patents. The examine additionally showed that litigated patents are much more likely to be cited as previous art with the aid of different issued patents, and that litigated patents encompass greater self-citations, that is, citations to different patents owned by the equal assignee.