mHealth Intellectual Property

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Copyright protects outright duplication, but patents offer broader protection

Patents can be the most costly to obtain, but most thorough form of IP protection. For while copyright can protect against someone copying the way an idea or concept is expressed, patent can protect an inventive concept in multiple forms of expression. So, if company B copies company A’s mobile app code, then copyright protection would apply. But if company B just creates an app that does the same thing as company A’s app using code they developed themselves, then copyright does not apply. But if the app were patented, then company B could be infringing the patent even if their code was different, and even if they had no idea they were trespassing on company A’s patent rights.


Timing is everything

The timing of filing for a patent is critical. In the US, you may have up to a year after making an offer for sale or public disclosure of your invention before losing the right to file a patentapplication for the disclosed/offered invention. However, that doesn’t apply in many other countries, where a public disclosure before filing a patent application will prevent the application from being filed. To complicate matters, as of March 16th, 2013, patents will be awarded to the first inventor to file an application for a given invention, with only limited exception being provided for public disclosures made within a year of filing a patent application. One can imagine that having a few months to test market response and adapt a product in that first year before patent filing is due could be a significant business advantage. Now, more than ever, the changes to the law will really force the hand of companies to make a strong commitment to protecting their IP before the horse leave the proverbial barn. Will this present a significant barrier to emerging technologies and companies?

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