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Innovation Patent Law

U.S. Innovation Economy Falls Even Further in Latest GIPC Patent Rankings

hand under a lightbulb drawn on a chalkboardThe Global Innovation Policy Center (GIPC) at the U.S. Chamber of Commerce has just released the sixth edition of its International IP Index. Unfortunately, the report finds that the United States is now tied for 12th place in its patent rankings. This is down from 10th place last year, and it’s down from 1st place just two years ago. The recent downward trend of the U.S. innovation economy is rather alarming, and it is further evidence that the U.S. is quickly abandoning its gold standard patent system.

GIPC notes that the U.S. patent system has faltered due to two key indicators: patentability requirements and patent opposition. As to the former, the report cites the Supreme Court’s recent Section 101 jurisprudence, which has created much uncertainty for innovators about what even constitutes a patent-eligible invention. These findings comport with the newly-published paper by CPIP’s Adam Mossoff & Kevin Madigan highlighting the Court’s troublesome approach to patent eligibility and its profound effect on our innovation economy. As to patent opposition, GIPC cites the ease of challenging patents that have already been issued through mechanisms such as inter partes review (IPR). Indeed, several CPIP scholars authored a recent white paper detailing how these IPR proceedings have become an existential threat to the very patent system they were meant to promote.

U.S. falls to 12th place in ranking of patent system strength. 2018 Chamber index marks further from for U.S. Category 1: Patents, Related Rights, and Limitations. 1. Singapore; 2. France; 3. Germany; 4. Ireland; 5. Japan; 6. Netherlands; 7. South Korea; 8. Spain; 9. Sweden; 10. Switzerland; 11. UK; 12. United States / Italy. ("Create," Global Innovation Policy Center, U.S. Chamber International IP Index, Sixth Edition, February 2018))

To read GIPC’s International IP Index, please click here.

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Innovate4Health Innovation

Innovate4Health: Nike’s Innovations Provide Comfort and Independence to People with Disabilities

This post is one of a series in the #Innovate4Health policy research initiative.

Innovate4HealthBy Nick Churchill

Many amputees, stroke victims, and people with movement disabilities rely on specialized clothing to support their daily lives. Participation in society, whether in the developing or developed world, requires being appropriately dressed. Not only can difficulty in dressing inhibit social and professional interactions, but it can also make it difficult to travel to a health care facility to receive treatment for a disability.

This problem is particularly acute with respect to shoes. Not everyone has the dexterity required to insert their foot into the small opening of a standard sneaker, let alone to tie traditional laces. Unlike a loose fitting sweater or elastic waistband, which can be sufficient to make shirts and pants functional, a shoe must be well-fitted to support a person who has difficulty walking.

Nike addressed the problem of well-fitted shoes for disabled people by developing FlyEase technology, which incorporates a zipper that extends around the heel of the shoe. This allows the wearer to create a large opening in the back or side of the shoe, slide in his or her foot, and close and tighten the shoe, all with one hand. Following on its success, Nike is currently working on a design for completely hands-free athletic shoes that can accommodate people of all abilities.

The original impetus for a shoe design with improved accessibility was CEO Mark Parker’s desire to help a Nike employee who had recently suffered a stroke. Renewed attention was given to the project in 2012 when high school student Matthew Walzer wrote an open letter to Nike explaining the importance of accessible, supportive footwear. Walzer has cerebral palsy, and his doctors predicted that he would never walk on his own. But with the help of crutches and Nike basketball shoes, which provide enough ankle support, he can. Nevertheless, Walzer’s independence was limited because he only had flexibility in one hand, which made it impossible for him to tie his own shoes.

The letter from Walzer explaining the challenges he faced made its way to Tobie Hatfield, the Senior Director of Athlete Innovation at Nike, who reached out to Walzer and began working on prototypes that could address his needs. After testing several iterations, Hatfield developed the patented FlyEase system, which has given Walzer the independence he sought. Nike sells several styles of basketball and running shoes that incorporate the FlyEase technology.

Nike went a step further to support innovation in shoes to help those with physical challenges by hosting the Nike Ease Challenge, an open innovation competition that sought a more hands-free design for performance footwear. The winner of the $50,000 cash award was Brett Drake, a civil engineer from Cheyenne, Wyoming. Drake’s design, which was inspired by snowboard boots, incorporates a hinged rear panel that pops open, allowing the wearer to slide in his or her foot before locking the panel back into place. The panel is secured by magnets strong enough to secure the shoe on the wearer’s feet, but light enough not to significantly add to the weight of the shoe. Drake will continue to work with Nike as it refines and tests his concept.

Open innovation contests like the Nike Ease Challenge are enabled by strong, well-defined IP rights. Collaborating with other firms or individuals provides opportunities for new, innovative ideas, but it also involves inherent risks and uncertainties. A carefully planned IP strategy can mitigate these risks and thereby facilitate cooperation. Collaborators can delineate existing IP rights and establish guidelines for how to share the value of the anticipated innovations up front. It would be irrational for a company to invest resources into a development project without the protections, which can provide reasonable expectation of return on its investment.

figure of a Nike shoeThe Nike Ease Challenge Official Rules provides some insight into how Nike overcame the risks associated with an open innovation contest. Participants granted Nike a limited license to all rights in their designs for the purposes of reviewing and testing them. Participants also granted Nike the right to use their likenesses for purposes related to the competition or a resulting product. The conditions allow the innovation contest to take place in an orderly manner, while preserving the ability of both parties to manage commercialization of any viable final product.

Nike rose to the challenge issued by Matthew Walzer, and it continues its efforts to develop an athletic shoe that is supportive and truly hands-free. Shoes featuring Nike’s FlyEase technology are available in men’s, women’s, and kids’ sizes and styles. Through an open innovation plan made possible by an intelligent IP strategy, Nike took another step towards a laudable goal: it crowdsourced an ingenious design that could help people of all ability levels achieve a new degree of independence and comfort.

#Innovate4Health is a joint research project by the Center for the Protection of Intellectual Property (CPIP) and the Information Technology & Innovation Foundation (ITIF). This project highlights how intellectual property-driven innovation can address global health challenges. If you have questions, comments, or a suggestion for a story we should highlight, we’d love to hear from you. Please contact Devlin Hartline at jhartli2@gmu.edu.

 

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Innovation Patent Law

CPIP Scholars File Amicus Brief Urging Supreme Court to Fix Section 101

dictionary entry for the word "innovate"On December 4, 2017, CPIP Founder Adam Mossoff and CPIP John F. Witherspoon Legal Fellow David Lund filed an amicus brief urging the Supreme Court to grant certiorari in RecogniCorp. v. Nintendo. The amicus brief was joined by several law professors, including Richard Epstein and Michael Risch, as well as CPIP Senior Scholars Chris Holman, Kristen Osenga, Mark Schultz, and Ted Sichelman. Bob Sachs of Robert R. Sachs P.C. served as counsel of record.

The technology at issue involves a method of encoding and decoding composite facial images on a computer. The invention solved the problem of decreased image quality when such images are transmitted digitally. RecogniCorp sued Nintendo for patent infringement, and Nintendo challenged the eligibility of the patent under Section 101. Applying the Mayo-Alice framework, the district court held that invention was ineligible subject matter because it was directed to an abstract idea and lacked an inventive concept. Agreeing with that analysis, the Federal Circuit affirmed.

The amici argue that the Supreme Court should grant certiorari in this case in order to correct the continued misapplication of the Mayo-Alice test by the Federal Circuit, the district courts, and the Patent & Trademark Office. By breaking down claims into individual elements and then generalizing them in broad terms, the lower courts and the PTO are failing to properly consider the claimed invention as a whole.

The Summary of Argument is copied below:

SUMMARY OF ARGUMENT

This Court has repeatedly reminded the Court of Appeals for the Federal Circuit, district courts, and the United States Patent & Trademark Office (“PTO”) that § 101 of the Patent Act is a key requirement in assessing the validity of both patent applications and issued patents. In doing so, this Court set forth a two-part test for assessing whether an invention is patentable subject matter (the “Mayo-Alice test”). See Alice Corp. Pty. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014); Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012). These cases build upon prior cases such as Diamond v. Diehr, 450 U.S. 175 (1981), which held that a software-based method for operating a rubber mold is patent eligible under § 101.

Unfortunately, the lower courts and the PTO have misunderstood how to apply the Mayo-Alice test. Specifically, the lower courts and the PTO have adopted an indeterminate and overly restrictive approach, invalidating legitimate patented innovation under § 101 with little predictability for inventors or patent attorneys. This frustrates the constitutional function of the patent system in promoting the “Progress of . . . useful Arts.” U.S. Const. art. 1, § 8, cl. 8.

This case exemplifies both of these fundamental problems—indeterminacy and over-restrictiveness—because the lower courts held that a claim is patent ineligible as an “abstract idea” merely because the process was implemented through the use of computer software. These problems undermine inventors’ ability to use the patent system to protect computer-mediated processes that are exactly the kind of innovation that the patent system is designed to promote.

Petitioner details the substantial confusion in the application of the Mayo-Alice test in this case, as well as at the PTO and in the lower courts. Amici here identify a further key insight: when lower courts and the PTO apply the Mayo-Alice test to only individualized elements of a claim, generalizing these elements into a broad, categorical description and not evaluating the claimed invention as a whole, they are using a methodological approach that conflicts with this Court’s existing precedents on determining patent eligibility under § 101.

In this case, the Federal Circuit held that a software-based method of producing images of faces on a computer screen is an “abstract idea.” RecogniCorp, LLC v Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017). It reached this conclusion by dissecting the claim into its separate elements and ignoring other key elements, ultimately finding the claimed invention is ineligible under § 101. By reducing the claim to “encoding and decoding data,” the court ignored the invention as a whole that improves the way computers generate digital representations of faces for display.

This Court can easily remedy this problem by (1) recognizing the role of the patent system in protecting computer-implemented innovation, a key driver of modern technological progress, and (2) providing further instructions to lower courts and to the PTO that they should apply the Mayo-Alice test only to the claimed invention as a whole. This is a predicate legal requirement in assessing novelty under § 102 and in assessing nonobviousness under § 103 of the Patent Act. It is also a fundamental legal requirement for asserting patents for both literal and equivalents infringement under § 271. In all of these other patent doctrines, this Court has maintained the basic requirement of assessing patentability or limiting assertion of patents to the claimed invention as a whole, as this avoids the same policy problems of indeterminacy and over-restrictiveness (or over-inclusiveness, depending on the perspective) in these other patent doctrines. Thus, this Court should grant the petition for certiorari, reverse the Federal Circuit, and provide further instructions for applying the Mayo-Alice test only to the “claimed invention as a whole.”

To read the amicus brief, please click here.

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Innovate4Health Innovation

Innovate4Health: Miriam Bridges the Gap Between Developing-World Infrastructure and Cancer Detection

This post is one of a series in the #Innovate4Health policy research initiative.

Innovate4HealthBy Alex Summerton

Originally a disease diagnosed only in developed countries, cancer is now a leading cause of death in the developing world with over half of all new cases annually. The rise in cancer in the developing world is attributed to improving technological, medical, and socioeconomic conditions. People are living longer due to reducing other causes of mortality such as infectious disease, unsanitary conditions, and maternal and infant mortality. The result is populations living long enough to begin seeing end of life diseases like cancer.

However, the advances leading to the higher prevalence of cancer in the developing world have not been accompanied by the advances to fight it. Treatment costs remain prohibitively high. Detection occurs late during the disease’s progression, generally after symptoms begin to present and chances of survival decrease. Underdeveloped infrastructure makes accessibility to screening and treatment difficult. Doctors’ offices can be remote and crowded, and trained oncologists are few and far between, leaving necessary expertise inaccessible to patients.

The overall effect is a developed-world disease outstripping developing-world technology and infrastructure.

Miroculus aims to combat the challenges of cancer screening, in both the developed and developing world, by providing accurate, low-cost, and accessible technologies that can be easily deployed at the earliest stages when treatment is cheaper and more effective. Founded by Alejandro Tocigl, Foteini Christodoulou, and Jorge Soto, Miroculus is developing a method of screening for cancers via microRNA.

The flagship product of Miroculus is Miriam, a cancer detection platform enabling accurate, early screening of cancer. Debuted at TEDGlobal in 2014, Miriam is a non-invasive tool that can rapidly screen for a wide range of cancers. Its design means it can be deployed during routine health examinations, rather than as part of cancer testing once symptoms have presented. Miriam works by assaying blood for the presence of microRNAs. Miroculus’s team has shown that certain microRNAs in a patient’s blood are correlated with specific types of cancer. So far, Miroculus has proven the concept of enabling Miriam to detect pancreatic, lung, breast, and hepatic cancer.

gloved hand holding screening toolMiriam achieves its goals through a simple yet elegant construction, requiring only a camera, computer, and testing substrate in a standard well plate. Each well contains a reactant keyed to a specific microRNA. A patient’s sample is added to each well and tested for the presence of microRNA. When the particular microRNA in the well is present in the patient’s sample, the reaction produces a luminescent effect. Miriam’s camera monitors these reactions by recording the change in luminosity of the wells during testing, sending these images via Miriam’s computer to Miroculus’s cloud computer. Miroculus then analyzes the pattern to determine which microRNAs are present and whether the patient has cancer.

Miriam’s advantageous three piece construction provides low-cost implementation while remaining clinically effective. Driven by Miroculus’s objective to democratize cancer screening technology, a Miriam testing platform can be created using cheap and readily available technologies in the developing world. During Miriam’s first debut, one of the founders showed the technology being deployed via a 3D-printed test chamber and a smartphone. Both 3D printing and smartphones are viewed as platforms for bringing developed-world medical technologies to the developing world. Combining innovative biological science and versatile technology such as 3D printing and smartphones allows Miriam to substitute for complex specialized equipment requiring far more training and resources to implement.

Miroculus is employing a blend of IP protections in the distribution of Miriam. It is combining an open source release of how to construct the Miriam platform, including copyrighted design plans for making the 3D printed device, with patent protection over its microRNA based testing method. Choosing to use this dual IP protection allows Miroculus to ensure a quality product in real world use with sufficient income to both run the company and develop the next generation of technologies.

To test the deployment and efficacy of Miriam, Miroculus has elected to employ open source distribution of Miriam. Instructions for building a fully functional Miriam are currently available on GitHub, including 3D printing instructions and software, firmware, and hardware instructions for a testing computer implemented on Arduino. These documents and code are published under open source licenses. This owner-driven free exercise of rights provides Miroculus with two major advantages. First, Miroculus can enjoy open collaboration and improvement on Miriam’s design and software. Second, making Miriam open source can encourage the adoption of the technology leading to additional economies of scale and providing Miroculus reputational benefits in the marketplace.

Miroculus is also utilizing patent protection for aspects of Miriam that require technical sophistication beyond having access to a 3D printer. It is globally seeking patents for testing wells and the detection system. By patenting the disposable wells, Miroculus can secure a return on its research and investment into Miriam. Because Miroculus views supplying the testing wells as the best income strategy for the technology, with revenue from supplying platforms being only incidental, Miroculus will be able to leverage the low-cost adoption of Miriam afforded by delivering an open source platform.

Miriam is a story of modern technology being used to bridge the gap between the developed and the developing world. Miroculus has a goal of enabling cheap, routine screenings for a wide range of cancers to lower the costs, both economic and human, of the disease. By making its testing device easily available, Miroculus aims to reach its goal of accessibility. And by securing patent protection for its testing wells, Miroculus will be able to ensure a return on its technology. This will allow further development and democratization of the necessary technology for combating the world’s most pressing diseases.

#Innovate4Health is a joint research project by the Center for the Protection of Intellectual Property (CPIP) and the Information Technology & Innovation Foundation (ITIF). This project highlights how intellectual property-driven innovation can address global health challenges. If you have questions, comments, or a suggestion for a story we should highlight, we’d love to hear from you. Please contact Devlin Hartline at jhartli2@gmu.edu.

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Innovate4Health Innovation

Innovate4Health: New Oxygen Machine Technology Confronts Blackouts in Emerging Nations

This post is one of a series in the #Innovate4Health policy research initiative.

Innovate4HealthBy Andrew B. Levey

Oxygen therapy, where supplemental oxygen is used as a medical treatment, is vital to children with pneumonia. Rolling blackouts in Uganda and other developing nations, which can last for hours at a time, are stopping oxygen concentrators—machines that concentrate oxygen from the ambient air—from providing this vital therapy. Problems are worse in more remote places that lack an electricity infrastructure in the first place. As a result, children already vulnerable to pneumonia are denied effective treatment. Currently, pneumonia accounts for at least 18% of all deaths of children under 5 years old.

The World Health Organization has stated that methods for providing oxygen are needed in low resource settings to combat poor energy infrastructure and theft of needed supplies. Through their FREO2 Foundation, Professors Roger Rassool and Jim Black of the University of Melbourne are tackling this problem with the FREO2 – Siphon.

FREO2 has improved upon existing oxygen concentrator technology by locally storing oxygen at low pressure, available when needed to supplement a disconnection of energy to the machine. While developing a new approach to the technology, the team managed to keep costs low and produce a product suitable for remote relocations vulnerable to blackouts. Lack of reliable electricity has been addressed in other ways, but those methods are only sufficient for larger, more established medical facilities. More remote and desolate clinics needed a different solution.

Professors Rassool and Black developed a concentrator which utilizes running stream water to create a low-pressure vacuum, which can be used to separate oxygen from the air in the environment. The team determined that the central issue is not specifically energy related, but a matter of creating a difference in air pressure to create air flow. The final product is cost efficient, easy to use, and simple to operate. Taking a step back and re-imagining the basic concepts of an oxygen concentrator allowed the team to arrive at the conclusion that electricity was not needed. A working prototype is already operating in Gippsland, Australia, with planned expansion to other countries. Professor Rassool is conducting operational and field work studies in Uganda to begin implementation of the device where it is needed most.

FREO2’s patent application describes the foundational innovation. Concentrating oxygen from the atmosphere involves passing air over a “molecular sieve,” which removes nitrogen and leaves primarily oxygen behind. The energy to move the air across the sieve in older technology was electricity creating high pressure to push air into the sieve. Figure 2 from the patent application shows how a siphon operating between two levels of water can accomplish the same goal by pulling the air instead of pushing. The water flowing through the siphon will draw in air, shown in typical patent fashion with a number (13) and a line. Drawing in air creates a vacuum that can be used to pull air into the sieve and concentrate the oxygen.

Figure 2 from the patent application

The Bill & Melinda Gates Foundation and numerous others have recognized the value of the innovation, awarding the inventors funding to continue research, development, and deployment of their invention. FREO2 is posed to continue its research and manufacturing into the near future. Ultimately, the inventors hope to bring their start up to Australia whereby they would establish a network within the community and potentially form manufacturing capabilities for future deployments. As the inventors note, they have a long road ahead but the rewards to be reaped are great.

The FREO2 device will save lives. As the inventors emphasize, the innovative technology allows remote clinics to keep oxygen concentrators performing by simply utilizing available water sources, which will support their primary mission—saving lives. And the benefits of IP protection will help assure that they fulfill their mission.

#Innovate4Health is a joint research project by the Center for the Protection of Intellectual Property (CPIP) and the Information Technology & Innovation Foundation (ITIF). This project highlights how intellectual property-driven innovation can address global health challenges. If you have questions, comments, or a suggestion for a story we should highlight, we’d love to hear from you. Please contact Devlin Hartline at jhartli2@gmu.edu.

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Administrative Agency Innovation Patent Law

The PTAB’s Regulatory Overreach and How it Cripples the Innovation Economy

files labeled as "patents"On August 14, 2017, the Regulatory Transparency Project of the Federalist Society published a new white paper, Crippling the Innovation Economy: Regulatory Overreach at the Patent Office. This white paper examines how an administrative tribunal created in 2011—the Patent Trial and Appeal Board (PTAB)—has become “a prime example regulatory overreach.” Several CPIP scholars are members of the Intellectual Property Working Group in the Regulatory Transparency Project that produced the white paper, including Professors Adam Mossoff, Kristen Osenga, Erika Lietzan, and Mark Schultz, and several are listed as co-authors.

Among the sweeping changes to the U.S. patent system included in the America Invents Act (AIA) was the creation of the PTAB, a new administrative body within the U.S. Patent and Trademark Office (USPTO). The PTAB hears petitions challenging already-issued patents as defective. Anyone can file a petition to have a patent declared invalid. The original idea was that this would help to weed out “bad patents,” i.e., patents that should not have been issued in the first place.

In the past five years, however, it has become clear that the PTAB has become an example of an administrative tribunal that has gone too far. Lacking the proper procedural and substantive restraints that constrain courts and even other agencies in respecting the rights of citizens brought before them, the PTAB is now “killing large numbers of patents and casting a pall of uncertainty for inventors and investors.”

In just a few years, the laudable goal of the PTAB in providing a cheaper, faster way to invalidate “bad patents” has led to a situation in which all patents now have a shroud of doubt around them, undermining the stable and effective property rights that serve as the engine of the innovation economy. The former chief judge of the court that hears all patent appeals recently said that the PTAB is a “patent death squad,” and confirming that this is not extreme rhetoric, the first chief judge of the PTAB responded to this criticism by embracing it: “If we weren’t, in part, doing some ‘death squadding,’ we would not be doing what the [AIA] statute calls on us to do.”

The white paper briefly discusses the history and purpose of the U.S. patent system and describes the PTAB and how it operates. The substance of the white paper details extensively the procedural and substantive problems in how the PTAB has failed to respect both the basic requirements of the rule of law and the rights of patent owners. The concern is that this undermines the stable and effective platform that patent rights provide as the engine of the innovation economy.

To read the white paper, please click here.

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Innovate4Health Innovation Patents

Innovate4Health: Nanobiosym’s Gene-RADAR Brings Real-Time Results for Zika Testing

This post is one of a series in the #Innovate4Health policy research initiative.

Innovate4HealthBy Gabrielle Eriquez

Because there is currently no preventative vaccine for Zika, a mosquito-borne virus known to cause severe birth defects in pregnant women, the ability to obtain a fast and accurate diagnosis is critical. However, especially in the developing world where Zika’s presence is greatest, there are significant issues with current diagnostic tests: they are in extremely high demand, especially during the summer months, and, accordingly, are very costly.

Enter Nanobiosym’s Gene-RADAR: a tablet-sized device which can detect Zika RNA from human serum. Though it is currently only authorized for Zika testing pursuant to an FDA Emergency Use Authorization, this device has the potential to facilitate the availability of faster, cheaper Zika testing worldwide.

Due to the scale of the disease, getting tested for Zika is not as simple as a quick trip to a local clinic. Testing criteria prioritize pregnant women who have possibly been exposed to the virus. These criteria result in many others who are not pregnant, but still may have been exposed, being turned away from getting tested.

mosquitoThe problem is even greater in developing countries in Latin America. Poor areas lacking adequate sanitation and air conditioning are favorable breeding grounds for mosquitoes. The only advice that many of these countries give to women to combat Zika is to avoid pregnancy; however, these countries have the world’s highest proportion of unintended pregnancies.

The difficulties in preventing and combating Zika that impoverished people in Brazil face have been well documented. For those living in more affluent areas, Zika testing is available even for patients who are not pregnant. But at free public clinics in poorer neighborhoods (where it is easier to contract Zika), lines are out of the door. Symptomatic patients spend hours waiting, only to receive saline for dehydration and to still have to return if their symptoms persist.

The lack of available testing for many patients in developing countries is influenced by cost. Tests are typically hundreds of dollars. For those who can’t even afford window screens or insect repellant, affording a Zika test at this price is next to impossible.

Timing is the other likely factor contributing to this issue. Dr. Anita Goel, CEO and founder of Nanobiosym, noted that even in Florida, testing was back-logged due to medical centers having to ship patients’ samples to outside labs. Results could take up to five weeks to come back.

Outside the U.S., 4 billion people don’t even have access to this basic, albeit inefficient, centralized testing mechanism. “[In developing countries], clinical testing is offered by the occasional network of unregistered laboratories operating without regulatory oversight. Services might be of too poor quality to be of any worth in medical decision-making.” Timing is obviously crucial for pregnant women, but it is also important for any other potentially-infected person, since Zika can be transmitted sexually whether or not symptoms are present.

Gene-RADAR has the potential to remedy these issues by decentralizing and mobilizing testing, thus lowering cost and wait time. Gene-RADAR employs nanobiophysics to diagnose in real time diseases that contain DNA or RNA.

This foundational technology is not limited to Zika. The mobile device was an award nominee for Saving Lives at Birth’s 2015 Grand Challenge for Development for utilizing the platform to detect early HIV in infants in Rwanda. It was also presented in the same year as a diagnostic solution for other global pandemics such as Ebola.

Centralized lab platforms can run from several hundred thousand to one million dollars. Though Gene-RADAR’s cost is still being optimized, the goal is to make it affordable even to the poorest areas of the globe. In terms of wait time, Gene-RADAR should be able to return results in about an hour, eliminating the back-log problem that comes with centralized testing mechanisms.

Gene-RADAR is patented, and does not require running water, constant electricity, or highly-trained personnel to operate. The patented improvements over previous technologies both result in a smaller machine and improvements in the accuracy of testing.

The device’s footprint is much smaller than that of large, centralized testing machines. Gene-RADAR is tablet-sized and only 3.5 pounds, versus 50-plus-pound platforms that are certainly not mobile and likely do rely on constant electricity.

Gene-RADAR diagnosis is also more accurate than that of the other Zika tests currently available. Current testing methods that look for Zika-specific antibodies have a high proportion of false positives. Other tests, like Gene-RADAR, look for DNA or RNA. But these other tests also result in false positives by confusing a sequence with that of another Zika-like virus, such as Dengue. The advances in Gene-RADAR improve accuracy to solve these problems by detecting a virus’s precise RNA sequence.

From a public health perspective, testing as many people as possible in at-risk areas will help contain the virus. If people know quickly whether they’re infected, there is less of a chance of infecting others. Through multiple global initiatives, Nanobiosym’s next step is to increase production and distribution where the need is greatest.

According to Dr. Goel, patent protection via the Nanobiosym incubator has allowed this revolutionary technology to expand beyond the research labs. “Our incubator focuses on bringing together a holistic approach using physics, medicine, nanotechnology, and information technology to create new science or technology, then incubate it all into different products and spin-off companies that can transform how we solve some of the world’s greatest challenges.”

The innovative technology that is Gene-RADAR is a prime example of innovation working to promote groundbreaking solutions to real-world challenges. For Zika (and other diseases with genetic footprints), this means the potential for cheaper, faster, and more readily-available testing that would undoubtedly benefit global health.

#Innovate4Health is a joint research project by the Center for the Protection of Intellectual Property (CPIP) and the Information Technology & Innovation Foundation (ITIF). This project highlights how intellectual property-driven innovation can address global health challenges. If you have questions, comments, or a suggestion for a story we should highlight, we’d love to hear from you. Please contact Devlin Hartline at jhartli2@gmu.edu.

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Innovate4Health Innovation Patents

Innovate4Health: GRIT Leveraged Freedom Chair Brings Mobility to Developing World

This post is one of a series in the #Innovate4Health policy research initiative.

innovate4healthThe World Health Organization (WHO) estimates that over 65 million people in the developing world need an appropriate wheelchair. Over 75% of people in the developing world live in rural areas, where standard wheelchairs do not work, as they are hard to mobilize over rugged terrain and rough local roads that may not be paved. Further, most wheelchairs are difficult to maintain: they are comprised of many pieces that are easy to break and hard to repair, and they are expensive to replace.

The Leveraged Freedom Chair (LFC) is a wheelchair that solves this international humanitarian problem. It enables people with disabilities in developing countries to gain mobility and independence, and it gives them the ability to navigate their environment in life-changing ways and at a viable cost. The LFC is built out of steel and bicycle parts that are commonly available in rural areas of developing countries. The parts and tools for maintenance and repair are inexpensive and commonly found. This makes it easier to repair the wheelchair at local bicycle shops or wherever spare parts may be found.

The construction of the LFC is engineered to meet the diverse challenges that arise in developing countries. The LFC uses a unique lever drivetrain which makes it both faster than conventional wheelchairs and sturdier when traveling over rough terrain. It does not use gears and derailleurs, which can be expensive and easily broken; it instead uses levers connected to the drivetrain to control velocity and speed. By using readily available bicycle parts in the production of the LFC, costs are kept down and users can maintain and repair the chairs themselves.

The lever construction is one of the high points of inventiveness of the LFC. Instead of pushing on the wheels like a regular wheelchair, LFC riders push on two levers, which are designed to be biomechanically efficient. LFC riders can shift gears by moving their hands up and down the levers. For smoother roads, riders push on a low part of the levers and shift into “high gear,” which enables them to travel 80% faster than a regular wheelchair on tarmac. For rougher terrain, riders push on a high part of the levers and shift into “low gear,” which enables them to ride over obstacles with 50% more torque than a regular wheelchair. The levers can be removed and stored on the wheelchair, which allows the LFC to be used like a regular wheelchair indoors.

The LFC was conceived and developed in 2007–2008 by four graduate students in the mechanical engineering program at MIT who then founded a company in 2012 called Global Research Innovation and Technology, or GRIT, to develop and commercialize their invention. The LFC has been in development since 2008. First-generation prototypes of the LFC were constructed in Kenya and Vietnam with community partners who were also local wheelchair producers. In 2014, GRIT secured Patent No. 8,844,959 for the LFC, a “wheelchair with level drivetrain.”

The company now manufactures the LFC in India with a local partner and sells it in bulk for $250 per chair to non-governmental organizations (NGOs) and other development organizations. The aid agencies and NGOs that purchase the chair generally distribute the LFC to users free of charge. In 2015, the GRIT management team estimated that it had shipped almost 1,200 LFCs to 17 countries, including Guatemala, Haiti, Kenya, Uganda, Tanzania, India, the Philippines, and Vietnam.

The team at GRIT runs the company as a “social enterprise,” pursuing a social mission (like a nonprofit) but also retaining the ability to make money off their patented invention. As a for-profit social enterprise, GRIT can accept money from nonprofit foundations that is congruent with its mission, but it can also raise private equity like a regular startup.

GRIT has earned numerous awards and honors for the LFC, including winning a Patents for Humanity Award from the U.S. Patent and Trademark Office in 2015.

After spending several years developing the LFC, GRIT decided to build upon its patented technology and develop wheelchairs similar to the LFC but more suited to use in first-world countries. The GRIT Freedom Chairs are somewhat sleeker in design, and have certain features that appeal to first world riders, such as a lightweight frame, optional customization, and the ability to be folded and stored in the trunk of a car. The sale of these chairs is intended in part to defray the costs of distributing chairs at or below cost in developing world countries. GRIT Freedom Chairs afford users access to previously-inaccessible terrains, and offer versatility to a broad array of riders, including American veterans. They are directly marketed in the U.S. in order to keep costs down.

People with limited mobility in developing countries face many daunting obstacles, and the lack of appropriate wheelchairs can severely limit their mobility, opportunities, access, and independence. The GRIT Leveraged Freedom Chair is an elegantly simple, inexpensive, and ingenious device that confers freedom to wheelchair users in the developing world. Its underlying technology, secured by vital U.S. patents, is also the basis of the GRIT Freedom Chair, which likewise transforms the lives of users in the developed world. Both the LFC and the Freedom Chair rely on secure property rights that enable their parent company to develop and market life-changing products that users can afford to ride, repair, and maintain. The “all-terrain wheelchair” is truly an invention with worldwide relevance and reach.

#Innovate4Health is a joint research project by the Center for the Protection of Intellectual Property (CPIP) and the Information Technology & Innovation Foundation (ITIF). This project highlights how intellectual property-driven innovation can address global health challenges. If you have questions, comments, or a suggestion for a story we should highlight, we’d love to hear from you. Please contact Devlin Hartline at jhartli2@gmu.edu.

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Innovate4Health Innovation Patents

Innovate4Health: Treating Neonatal Jaundice in the Developing World with D-Rev’s Brilliance

This post is one of a series in the #Innovate4Health policy research initiative.

Innovate4HealthBy Nick Churchill

Severe neonatal jaundice kills over 100,000 newborn babies annually and causes severe brain damage to thousands more. In most cases, the condition can be treated by simply shining a blue light on a baby’s skin. However, each year more than 6 million infants worldwide do not receive adequate treatment. The problem is particularly severe in low-income countries, where many hospitals cannot afford the equipment to treat jaundice.

To address this global health problem, the innovators at D-Rev, a non-profit firm based in San Francisco, designed a high-performance, affordable device called Brilliance to treat severe neonatal jaundice. Brilliance has been praised by users as “effective and user-friendly,” and it was honored as the top innovation in the Health category of the 2016 Tech Awards. Since the introduction of the first Brilliance model in 2012, D-Rev estimates that the device has treated over 250,000 babies and has averted approximately 3,400 infant deaths and disabilities.

Neonatal jaundice occurs when a newborn has elevated levels of bilirubin in the blood. Approximately 18% of babies have severely high levels of bilirubin, which, left untreated, can lead to brain damage, cerebral palsy, hearing loss, and even death. Severe jaundice can be treated with a process called phototherapy, which involves placing the baby under special blue lights. When the light is absorbed by the infant’s skin, it helps break down bilirubin. Treated properly, severe jaundice usually does not cause lasting damage.

Phototherapy has long been recognized as a simple and effective treatment for severe neonatal jaundice; but at around $3,000, traditional phototherapy devices are prohibitively expensive for many hospitals in developing countries. Hospitals that can obtain a traditional unit are often unable to afford the maintenance and repair costs necessary to keep it running. The unreliable electrical systems in many developing countries can cause voltage spikes that damage device components. Commonly used fluorescent lamps require frequent replacement. As a result, phototherapy is unavailable to babies in many developing communities.

D-Rev is a product development company founded in 2007 to provide world-class, affordable healthcare technologies to people living on very low incomes. After learning that severe jaundice continues to cause brain damage in many parts of the world, D-Rev staff members visited hospitals in India and Nigeria to assess the availability of effective phototherapy and found that most of these hospitals did not have phototherapy devices that met standards for care. With the problem identified, D-Rev’s design team got to work.

D-Rev’s advanced devices, for which they are seeking a patent, uses LEDs that last 60x longer than fluorescent lamps, saving hospitals over $240 per year on replacement bulbs. Brilliance is designed to withstand a range of power fluctuations without affecting performance and operates without cooling fans or filters, so there are fewer parts to maintain. The device is height-adjustable and can be integrated with the wide variety of other critical neonatal medical equipment found in hospitals serving low-income communities.

Importantly, D-Rev’s devices are inexpensive to manufacture, which allows D-Rev to sell them for hundreds, instead of thousands, of dollars. The newest model incorporates the technology in their patent application, which ensures light intensity levels remain consistent across the treatment area at any angle of tilt. D-Rev also developed an integrated light meter to help healthcare providers ensure that infants receive appropriate doses of light, something many low income hospitals were previously unable to do. Thus, the innovations developed by D-Rev are improving the technology and reducing cost, making much needed treatments more accessible in the developing world.

After successfully designing an affordable and effective phototherapy device, D-Rev’s next challenge was to find a way to deliver Brilliance to the hospitals that needed it most. D-Rev’s CEO, Krista Donaldson, recognized that the firm would need help to establish a sales and distribution network, noting, “We knew we needed to license in this case.” To achieve its goals, D-Rev needed to find a partner willing to manufacture its products and distribute them to hospitals and clinics in the poorest communities in the world.

D-Rev licensed its technology to Phoenix Medical Systems, a neonatal equipment firm based in India, who agreed to manufacture and distribute Brilliance while capping its price. The licensing agreement was structured so that D-Rev would take a smaller royalty on sales to public and district hospitals, which tend to serve lower-income patients. In this way, D-Rev used its intellectual property rights to align the incentives of Phoenix’s sales team with D-Rev’s goal of reaching those patients who are most in need of affordable phototherapy.

Donaldson has explained why D-Rev’s protection of its intellectual property “is a prerequisite to having the broadest possible impact.” First, intellectual property rights allow D-Rev to ensure that the quality of its products remains consistent. As Donaldson notes, a medical device “cannot fail the user, particularly a user in a vulnerable population.” Second, inconsistency erodes consumer trust, which limits the impact of a product. Third, D-Rev recognizes that designing an effective product does not necessarily solve the targeted problem. By retaining control of its intellectual property, D-Rev can ensure consistent manufacturing of its products, sustainable delivery to users who need it, and continued maintenance and support. Finally, D-Rev protects its intellectual property because the market is “the most economically sustainable and scalable way” of reaching their intended customers.

D-Rev has demonstrated that the value of intellectual property goes beyond incentivizing life-saving innovation like Brilliance. Intellectual property rights empower innovators to increase their impact by partnering with market leaders like Phoenix. As Donaldson concluded: “To succeed, serious partners (for-profit or non-profit) must also make an investment, and none are willing to do that with the threat of knock-offs.”

#Innovate4Health is a joint research project by the Center for the Protection of Intellectual Property (CPIP) and the Information Technology & Innovation Foundation (ITIF). This project highlights how intellectual property-driven innovation can address global health challenges. If you have questions, comments, or a suggestion for a story we should highlight, we’d love to hear from you. Please contact Devlin Hartline at jhartli2@gmu.edu.

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Injunctions Innovation Legislation Patent Law Patents

The STRONGER Patents Act: Important Legislation to Protect Our Innovation Economy

U.S. Capitol buildingToday, Senators Chris Coons, Tom Cotton, Dick Durbin, and Mazie Hirono introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act of 2017. This important piece of legislation will protect our innovation economy by restoring stable and effective property rights for inventors.

First and foremost, the STRONGER Patents Act will bring some much-needed balance to the post-issuance review systems administered by the USPTO’s Patent Trial an Appeal Board (PTAB). Until now, the PTAB has been a “death squad”; an arm of the USPTO killing patents that the same USPTO had previously issued. There are even examples where the PTAB has invalidated a patent that had previously been upheld by the Federal Circuit Court of Appeals.

Data analyzing PTAB outcomes demonstrates just how dire the situation has become. Coordinated and repetitive challenges to patent validity have made it impossible for patent owners to ever feel confident in the value and enforceability of their property rights. Only 16% of patents reaching a final written decision at the PTAB have survived unscathed.

This is not surprising as the procedures have been stacked against patent owners from day one. We and others have noted how broadly construing claims, multiple filings against the same patent by the same challengers, and the inability to amend claims, among other abuses, severely disadvantage patent owners in PTAB proceedings. With the STRONGER Patents Act, these proceedings will move closer to a fair fight to truly examine patent validity. There are many aspects to this legislation that will improve the PTAB, such as:

  • Harmonizing claim construction with litigation, focusing on the “ordinary and customary meaning” instead of the broadest interpretation a bureaucrat can conceive. Sections 102(a) and 103(a).
  • Confirming the presumption of validity of an issued patent will apply to the PTAB just as it does in litigation. Sections 102(b) and 103(b).
  • Permitting only those who are “charged with infringement” of the patent to challenge that patent, thus preventing the abusive and extortionate practice of challenging a patent to extract a settlement or short a company’s stock. Sections 102(c) and 103(c).
  • Limiting abusive repetitive and serial challenges to a patent. Sections 102(d), (f) and 103(d), (f).
  • Authorizing interlocutory review of institution decisions when “mere institution presents a risk of immediate, irreparable injury” to the patent owner as well as in other important circumstances. Sections 102(e) and 103(e).
  • Prohibiting manipulation of the identification of the real-party-in-interest rules to evade estoppel or other procedural rules and providing for discovery to determine the real-party-in-interest. Sections 102(g) and 103(g).
  • Giving priority to Federal Court determinations on the validity of a patent. Sections 102(h) and 103(h).
  • Improving the procedure for amending a challenged patent, including a new expedited examination pathway. Sections 102(i) and 103(i).
  • Prohibiting the same administrative patent judges from both determining whether a challenge is likely to succeed and whether the patent is invalid. Section 104.
  • Aligning timing requirements for ex parte reexamination with inter partes review by prohibiting requests for reexamination more than one year after being sued for infringement. Section 105.

Second, the STRONGER Patents Act will make other necessary corrections to allow patents to promote innovation. For example, as Section 101 of the Act confirms, patents are property rights and deserve the same remedies applicable to other kinds of property. In eBay v. MercExchange, the Supreme Court ignored this fundamental premise by holding that patent owners do not have the presumptive right to keep others from using their property. Section 106 of the STRONGER Patents Act will undo the disastrous eBay decision and confirm the importance of patents as property.

Third, the STRONGER Patents Act will once and for all eliminate USPTO fee diversion. Many people do not realize that the USPTO is funded entirely through user fees and that no taxpayer money goes to the office.  Despite promises that the America Invents Act of 2011 would end fee diversion, the federal government continues to redirect USPTO funds to other government programs.  This misguided tax on innovation is long overdue to be shut down.

Each of the steps in the STRONGER Patents Act will help bring balance back to our patent system. In addition to the major changes described above, there are also smaller changes that will be important to ensuring a vibrant and efficient patent system. CPIP co-founder Adam Mossoff recently testified to Congress about the harms being done to innovation through weakened patent protection.  It is great news to now see Congress taking steps in the right direction.