The Intricacies of Patenting Medical Devices and Surgical Procedures

March 6, 2015Articles Bloomberg BNA Intellectual Property Law Resource Center

Medicalnext hit previous hitdevicesnext hit, prosthetics and contraptions surgically implanted within the body and previous hitsurgicalnext hit previous hitproceduresnext hit that help us live longer, healthier and higher quality lives are often the subject of great ingenuity and innovation, and millions of dollars of research. To stimulate that research, investment and innovation, previous hitmedicalnext hit device companies and surgeons need to be able to protect their risk and investment, and previous hitpatentingnext hit those innovative previous hitdevicesnext hit and previous hitsurgicalnext hit previous hitproceduresnext hit is one way to stimulate that investment.

Things are getting complicated, however, for patent practitioners drafting and prosecuting patent applications on previous hitsurgicalnext hit previous hitproceduresnext hit and their associated previous hitmedicalnext hit previous hitdevicesnext hit. On the judicial front, the Supreme Court recently granted certiorari in Commil v. Cisco on an induced infringement question, 1 and remanded Limelight v. Akamai to the Federal Circuit on an issue that has potential ramifications on both direct and indirect infringement.

However those cases play out, patent laws that place limitations on liability of surgeons and healthcare entities further complicate obtaining patents covering previous hitsurgicalnext hit previous hitproceduresnext hit and associated previous hitmedicalnext hit previous hitdevicesnext hit. This article identifies, for both patent prosecution practitioners and patent litigators, some of the issues relating to indirect infringement that may be helpful in their practice.

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