Patent Trolls Threaten Telemedicine at Worst Possible Time

By Jerry Rogers
March 16, 2020

This article originally appeared in Real Clear Health

From northern Alaska to islands off Florida—and countless places in between—telemedicine is saving, extending, and improving American lives. As we’ve witnessed the rapid spread of the coronavirus disease in recent weeks, we can see that mobile devices and health applications are playing a critical role in the public health response—from accessing public health information to swift and safe consulting with a health care provider. 

Connecting patients with medical professionals instantaneously via mobile telehealth applications, whether across town or on the other side of the world, allows those affected by or exposed to the virus to receive proper medical care without potentially exposing others.  In fact, in response to the coronavirus outbreak, President Trump just signed legislation allowing Medicare to expand the use of telemedicine in vulnerable areas – demonstrating just one of the many ways in which these developing technologies will facilitate rapid, efficient responses to the virus.

Advancements in telemedicine and mobile-health will be critical to containing and managing the corona virus outbreak; this virus is also bringing their broader benefits sharply into focus.  In fact, telemedicine and mobile-health technology are supporting countless initiatives to improve access to health care and enhance patient outcomes. 

• In places like northern Alaska, accessible in winter only by dog sleds and seaplanes landing on ice, telemedicine is bringing emergency medical expertise to people for the first time.

• And in ordinary communities, mobile technology can help elderly people get timely attention so they don’t have to be rushed to the emergency room by ambulance.

• With the advent of 5G technology, remote surgery will become increasingly common, offering access to medical experts no matter where you live.

The link between mobile health and better health outcomes is at the center of medical progress, in both the private and public sectors.

• The Veterans Health Administration is increasingly promoting—and relying on—telehealth to guarantee medical care to millions of those who have served their country. American service men and women should never be denied the highest quality care. Today, such care hinges on mobile health technologies, not only to combat the coronavirus but to deal with many chronic diseases in this population.

• The Department of Health and Human Services (HHS) is working with rural communities to advance telehealth—providing health care access remotely by means of mobile technology, broadband, and the internet. HHS concretely demonstrates the priority it is giving to this initiative with its dedicated Office for the Advancement of Telehealth, Health Resources and Services Administration (OAT/HRSA), which is also closely tied to promoting the advances in the law just passed due to the coronavirus.

• The health insurer, Anthem, partnered with smartphone manufacturer Samsung via Health app, an app on all Galaxy devices, to release LiveHealth Online. This service connects Anthem policyholders to licensed health care providers for non-emergency consultations 24/7, typically at the fraction of a co-pay for a visit.

• Pharmaceutical companies are looking for ways to partner with companies like Fitbit, 23AndMe, and others to use data to develop improved health care results. Drug makers see that information—part of what’s known as “real-world evidence”—as a powerful tool to help them improve health outcomes, as well as hunt for new drug targets and design more efficient clinical trials.

• And the horizons for mobile health keep broadening. In mid-2018, the startup Akili Interactive Labs asked the Food and Drug Administration (FDA) to let it do something that’s never been done before: market a video game that physicians would prescribe to kids with ADHD.

For most Americans, their 2020 presidential vote hinges on health care policy—81% of Americans say that health care is very/extremely important for the 2020 election.

It is clear that health care matters to everyone regardless of where they are in life; access to new cures and treatments matters to rural farmers, veterans, corporate executives, college students and every American in between. From Des Moines to Los Angeles and from Kansas City to New York, mobile technology—21st Century health care—means increased access and better health outcomes.   

Good. We all agree. Better health care is our priority regardless of our politics, and mobile health technologies are delivering to Americans—especially those under served in rural communities and our veterans—increased access to medical breakthroughs and treatments. And all of it—the entire framework for medical progress—depends on a robust legal and policy structure that protects Intellectual Property properly.

If only it were that simple.

Unfortunately, there are bad actors in the IP space —patent trolls—who destabilize medical progress. These trolls, set up to try to get quick cash, employ cynical legal strategies and inappropriately leverage the judicial system and government agencies to advance their financial interests at the expense of the public interest. They can hold mobile health (telemedicine)—the future of health care— hostage, by abusing the US legal process.

Regrettably, the U.S. International Trade Commission (U.S. ITC)—an independent, non-partisan federal agency established to protect American industries from unfair imports—is an increasingly popular forum for patent trolls. These trolls—which “are in the business of litigation (or even just threatening litigation)”—choose the U.S. ITC platform for two reasons: 1) the intimidation power of the U.S. ITC’s exclusion orders that can literally ban categories of products from the U.S. marketplace; and 2) the ITC process moves much faster than the courts, so the threat of exclusion comes quickly.

What’s an exclusion order? If the U.S. ITC finds that imports are violating an IP right related to a domestic industry, it can ban that type of imported product at the U.S. border, issuing an exclusion order to enforce the ruling. This is true even if the patent is just one of hundreds of thousands of patents incorporated into the product. 

Courts in IP disputes don’t do this.  Instead, they rely on money damages as discipline, understanding how disproportionate and draconian a categorical product ban would be. Ironically, however, an exclusion order is the ITC’s only tool. Trolls are increasingly exploiting the threat of this ban to extort outsize royalty payments from the producers of complex innovative products, regardless of whether the IP claim is clear or the IP at issue is in any way central to the product’s value. A wickedly brilliant abuse of both the U.S. ITC and the courts.

These trolls are coming after the telehealth innovators and, consequently, pose a major threat to emerging health technologies and American patients, in real time, affecting real lives.

One current and noteworthy example involves a foreign company called Neodron, a syndicate that is classified as a Non-Practicing Entity (NPE) because it does not create or innovate—i.e., it doesn’t make anything.  Neodron has filed two complaints at the U.S. ITC, and is currently seeking exclusion orders that, if issued, could jeopardize much of the progress we’ve seen in mobile health care access for American patients. How?  Neodron wants to ban access to the millions of mobile devices that Americans depend on. The complaints accuse almost a dozen prominent high-tech companies, including Amazon, Apple, Dell, Microsoft, Motorola, Samsung, and Sony, of infringing on patents related to touch screen technology and ask the U.S. ITC to bar the importation of their touch screen products.

We are accustomed to policy fights over health care happening on the floor of the Senate, over the TV airwaves, or at salon dinners and conferences in Washington D.C.  Policy experts argue over price controls, Medicare-for-All, FDA reform, drug prices and so on. What we’re not used to is a government agency established to protect the interests of U.S. industries from unfair trade practices being exploited by entities in a way that works against the public interest and could stunt healthcare innovations. NPEs like Neodron present a new threat and challenge to consumers and policymakers alike. 

They singlehandedly can stymie a response to a pandemic like the coronavirus, by constraining the tools for modern health care access, new cures, and better outcomes with their sweeping demands to keep most mobile devices out of the United States.  These outcomes would be devastating – and completely nonsensical – as the current coronavirus threat vividly demonstrates.  Health innovation should be incentivized, not stopped dead in its tracks so an NPE can profit.  

The President and Congress have promised to make health care a priority this year, and we know that health care is the number one issue of the electorate in 2020. Let’s hope—let’s demand—that our elected officials take this threat seriously and push for reforms at the U.S. ITC so patent trolls can no longer threaten public health or medical innovation for private financial gain.  

Jerry Rogers is the editor at RCH and the host of “The Jerry Rogers Show” on WBAL NewsRadio.