Portugal: 360º Degree Intellectual Property Protection In The Healthcare Industry

Ricardo Costa Macedo, Head of the Life Sciences and Intellectual Property groups at Caiado Guerreiro, clarifies the available intellectual property protection in the healthcare industry including trademarks, patents, domain names, and trade secrets.

It is known that there is an increased demand for health services across the world. Global population growth, aging population and an increased pace of medical advances are some of the factors contributing to the higher demand for health care services. According to Eurostat data, the current healthcare expenditure relative to Gross Domestic Product in 2019 in the European Union was of 9.92%, being that among the EU Member States, Germany (11.7 %) and France (11.1 %) had the highest healthcare expenditure relative to Gross Domestic Product in 2019, Portugal having a 9.53% healthcare expenditure relative to Gross Domestic Product in said year.

A relatively consensual definition of health care industry (also called the medical industry or health economy) is an aggregation and integration of sectors within the economic system that provides goods and services to treat patients with curative, preventive, rehabilitative, and palliative care.

According to the United Nations International Standard Industrial Classification (ISIC), the healthcare industry generally consists of hospital activities, medical and dental practice activities and "Other human health activities", the latter involving activities of, or under the supervision of, nurses, midwives, physio-therapists, scientific or diagnostic laboratories, pathology clinics, residential health facilities, or other allied health professions, e.g., in the field of optometry, hydrotherapy, medical massage, yoga therapy, music therapy, occupational therapy, speech therapy, chiropody, homeopathy, chiropractic, acupuncture, etc.

Trends in the Health Care Industry for 2022

In the wake of the COVID-19 pandemic, it is already clear that significant changes were implemented as a result of said pandemic. The health care industry changed too.

While many more changes will come in the future for the health care industry, some are more significant and apparent than others.

Amongst the more significant and apparent changes in the health care industry one can enlist various changes.

The adoption of telemedicine is certainly one of them. Just a few decades ago a patient video-calling his/her physician was not possible, whereas nowadays many doctors are happy to interact with their patients from a distance via a video or phone call.

Integrated medical technologies are also a trend of today: electronic health records, medical internet of things, artificial intelligence, remote monitoring, all congregate to transform in many ways the way in which health care is provided.

Another consensual change that is appearing on the horizon for health care service is more personalization in health care. This can be tied-up with another trend which is the increase in home care services vs. hospital care services.

All of these trends can and should be considered in the context of protecting intellectual property assets.

Trademark protection

Trademarks in the health care industry are an important mechanism in the strategy to promote not only innovation, but also to build the sense of identification for consumers with companies.

If a company has decided to act in the health care industry, it should make sure that its company name and any product or service are trademark protected.

Although trademarking is not often on the business agenda of entrepreneurs in this sector, the right selection of a trademark helps to build a strong image.

In fact, a trademark is a sign used in commerce to distinguish and identify a company's products and services from those of other companies. Trademarking helps the consumer to find the desired products, which builds the reputation of the trademark and also encourages its holder to maintain the quality of its products.

After choosing possible names for their services and products, health care providers should consider conducting a prior search to assess possible confusion between their trademark with others to ensure that the desired trademark is not already in use or that the trademark does not have a negative meaning in certain countries.

Prior research also prevents facing a possible infringement or unfair competition claim from other trademark owners or representatives.

In the specific case of medicinal products, there are of course regulatory provisions that should be considered in the context of trademark protection.

Patents

A patent right attributes the exclusive right of exploring the invention in a certain territory to the holder of such right.

A patent right may be transmitted either free of charge or onerously. The transmission of patent rights is perceived as a fundamental characteristic of the patent system.

The right to the attribution of a patent belongs to its inventor or to the inventor's heirs.

Patents are titles of invention, meaning, industrial property rights intended to protect inventions. The patent as granted will be the starting point for the clarification of the scope of protection of the patent.

The protection of the patent allows for the exploitation of the patented invention in a certain territory. This establishes the positive content of the patent right, granting its inventor the right to practice and use the patented invention within a limited territory, in light of the territorial scope of patent rights.

On the other hand, there is also a known negative content of the patent right, meaning it attributes to the patent holder the right to prevent unauthorized third parties from using the patent and profiting from what is thought to be an exclusive right (thus precluding third parties from benefitting from the inherent economic rights).

Provided that the usual requirements of novelty, inventive step and utility are met, patents are traditionally a strong option to be considered for any individual or entity acting in the health care industry who wishes to protect its intellectual property rights.

Trade secrets

In a highly competitive and fast-changing reality, the ability to innovate in the creation of products and solutions is key to the success of a company in the health care industry. Trade secrets are often a crucial part of this process, thus giving a competitive advantage to its holders in their market.

Misappropriation can mean the loss of this advantage over competitors because the secret loses its core quality: not being widely known.

If a trade secret of a technical nature is at stake, the loss may result in that a process that was exclusive becomes replicable by others.

If it is a trade secret of a more commercial nature, the company may be exposed in its strategy, resources or contacts.

It should also be noted that business secrets often result from a prior investment, which makes their misappropriation a double loss: because of the loss of future income and because of the past investment that is no longer recoverable.

And what exactly constitutes a trade secret? According to Article 39º (2) of the TRIPS Agreement, a trade secret is information that: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

There are several measures a health care provider may and should take to protect its trade secrets and these can be factual or legal.

Domain names

In the age of the internet, it is very relevant to have a trademark aligned with a domain name, and that is also the case in the health care industry. As such, domain name availability is an important aspect when selecting a trademark, and so is owning the right domain name and ensuring the exclusive right of using such a domain name.

Conclusion

There is a growing demand for health services across the world, which is also a growingly competitive environment. Individuals and companies acting in this sector have a wide range of intellectual property rights that can and should be used in order to secure their position in the marketplace. An increasing perception of the value of intangible assets alongside already identified trends in the health care industry advise careful consideration of intellectual property protection.

Originally published in the 7th issue of The Life Sciences Lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.