Medical device software and user interfaces are becoming an increasingly important differentiator for MedTech companies. New GUIs and data visualisation tools – for clinicians or for patients – may make all the difference for providing better healthcare, dental treatment, or drug development.
In this article, we provide tips on how to patent these inventions at the EPO, and how to successfully navigate EPO patentability exclusions that might otherwise be a barrier.
Avoiding a ‘triple’ exclusion
The EPO has patentability exclusions related to: (i) medical methods, (ii) presentations of information, and (iii) computer programs. At first glance, that sounds like bad news for, e.g., a computer-based medical user interface. However, by knowing to what extent each exclusion applies, it can be possible to obtain patent protection for these inventions.
To start with, even if your invention relates to an excluded medical method, that exclusion only applies to method claims. A claim to a system arranged to perform the method could be allowable. So we already have some prospect of overcoming one of the three hurdles simply by claiming a system rather than a method.
For patenting inventions that might relate to presentations of information and/or computer programs, a general guiding principle is to identify a technical effect associated with the invention, as illustrated by the following example.
T643/00 – patentable image display method
EPO Boards of Appeal case T643/00 related to displaying multiple images side-by-side at low resolution and allowing selection of one of these images to display it at higher resolution.
The Board considered that the claimed features related to the format in which the images were displayed (how they were presented), rather than merely to their information content (what was presented). That format was found to ‘contribute to the technical solution of the technical problem of an efficient search, retrieval and evaluation of images stored in an image processing apparatus’, and so a ‘presentation of information’ exclusion did not apply. The claims were found to involve an inventive step and to be allowable.
Importantly, the Board distinguished between ‘mere aspects of art design, like a pleasant look or feeling’ and ‘the organisation of an overall image structure in view of a technical problem’.
We have found this to be a very useful case to cite when arguing before the EPO that medical software tools involve technical, inventive features. For example, it can be used to support arguments that the ways in which medical images are stored and displayed in data visualisation software enable a clinician to process such images in a more efficient manner. It is also always worth considering further potential technical effects of such tools. For example, there may well be computational efficiencies associated with selectively rendering higher or lower resolution versions of images, which can further contribute to the acknowledgement of a technical, inventive contribution.
‘How’ and ‘what’
So, by taking the right approach, even an invention related to a MedTech GUI might be patentable at the EPO – despite exclusions related to medical methods, presentations of information, and computer programs.
Our team has considerable experience advising clients on patent matters in relation to all aspects of medical devices. If you have a question relating to these technologies, please get in touch with one of our experts Tomos Thomas, James Beal and Nick Noble.