A recent court decision on infringement of IP in an ECG screening service shows how components of the service qualify for different forms of protection. Reliance on less obvious IP rights can offer valuable cover for a business’s assets even in the absence of patent protection.
Technomed’s ECG screening service
Technomed developed an internet-based ECG analysis and recording system called ECG Cloud. This enabled ECG readings taken using mobile equipment to be analysed remotely by reporters. The service did not provide a definitive diagnosis but is able to flag up potential problems to the patient’s cardiologist. Analysis of the data submitted for online review relied on comparison with an underlying database of characteristics.
The database was initially developed by Technomed with help from clinicians, and was subsequently modified and improved to take account of physician feedback.
A business relationship goes bad
Technomed entered into a contract to provide screening services to Bluecrest Health Screening. The relationship began well but after a few months Bluecrest asked for a price reduction. Bluecrest began negotiating with alternative providers, and eventually signed up with a competitor, Express, for a similar service.
Technomed complained that Express was using its intellectual property in the provision of the competitor service. Technomed asserted both copyright and database right in materials it had developed and claimed that these were used, without its permission, by Express.
Database right - from football to phone data
Database right is separate from copyright and is given to collections of data, materials, etc that are arranged in a systematic way. Protection depends on the creator having put in substantial investment in the obtaining, verifying or presentation of the database contents.
Examples of databases that have previously been recognised by the courts include football fixture lists and collections of unique identification details (permanent memory absolute addresses) for mobile phones collected for use as evidence in criminal proceedings. Technomed’s work in assembling and verifying the materials was enough to merit protection.
Bluecrest had obtained and shared a copy of the Technomed database with Express, and it had been used to produce Express’s patient reports. The judge concluded that Technomed’s rights were infringed.
Copyright - old but still useful
Technomed also said that its copyright material had been infringed. Copyright is an old beast tweaked and prodded to provide protection to modern works. But it can still offer valuable protection alongside the relatively young and sprightly database right.
The judge decided that there had been copyright infringement in relation to Technomed’s XML format, its explanatory materials and older versions of elements of the patient reports. Rewriting of the material in the reports meant that later versions did not infringe.
Technomed’s visuals showing the flow of blood and of electricity through the heart and an ECG wave diagram qualified for protection as artistic works and this was also infringed.
Valuable protection for healthtech services
This is a fairly clear case of material having been lifted from a healthtech service and used by a competitor, and it is welcome to see the court conclude that there was infringement.
It also demonstrates how database right and copyright can be used in this context where patent protection has not been obtained. Elements of the service and technology can qualify for protection even if individually they did not take a large amount of time and effort to produce. Building up a case of infringement of database right and copyright in text and graphics can be a valuable way to protect your medtech/healthtech product or service.
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