“Telehealth” refers to the use of digital communication technologies to access and provide remote healthcare services.
It encompasses, for example, virtual doctor consultations and treatments, including mental health therapies, remote patient monitoring, remote rehabilitation services, and digital health platforms, e.g., for symptom tracking and medication assistance.
Telehealth allows patients to receive medical care and consultations from healthcare professionals without the need for in-person visits, making healthcare more accessible, convenient, and efficient.
Telehealth inventions often involve geographically distributed systems in which health data may be collected from user devices in one country and then transferred to a server in another country for processing and analysis.
However, asserting a patent right to a telehealth invention for such a geographically distributed system against a potential infringer can cause difficulties.
Infringement requires all features of the patent’s independent claims to be present.
However, a patent generally only offers protection within a single country or territory.
So, in principle, all the claimed features have to be present in that country.
Even a European patent is only enforced on a country-by-country basis (or for all Unitary Patent countries at once via the Unified Patent Court, as discussed in more detail below).
For example, if your UK patent has claims to a system involving actions at both a user device and a server, will it cover a competitor doing the same thing if their server isn’t in the UK, i.e., when the infringement is divided over multiple countries?
The UK approach
Such a divided infringement situation faced the judge in the case of Menashe v William Hill ([2002] EWCA Civ 1702).
Menashe’s patent related to a gaming system involving a terminal computer that acted as a player station and was connected to a remote host computer.
Menashe alleged that their patent was infringed by William Hill.
However, William Hill argued that their system did not infringe the patent in the UK because their host computer was not located in the UK.
The judge decided that the crucial factor was determining who used the gaming system and where they used it.
Since the user was the player of the game, and since both the player and the terminal computer were in the UK, the judge ruled that the gaming system was being used in the UK.
The location of the host computer was not relevant.
Essentially, the user was using the host computer in the UK, regardless of where the host computer was physically located.
This approach was confirmed in Premaitha v Illumina ([2017] EWHC 2930 (Pat)), where the location of a computer performing an intermediate step of data analysis was considered to be irrelevant.
The judge noted that it would otherwise be far too easy to avoid infringement of this type of invention by simply offshoring data processing.
Careful Patent Drafting
In the UK at least, patents can sometimes cover geographically distributed systems even if parts of the system are located elsewhere.
Nevertheless, it is important to ensure the claims of the patent application are drafted carefully.
