As a medical student, I recall hearing about another guy who, like me, got both his undergrad and medical degrees from the University of Minnesota and, unlike me, went on to strike it rich with a medical device patent by inventing and what would become the Bair Hugger surgical patient warmer.
Dr. Scott D. Augustine‘s device would later be linked to increased surgical infections and we learned not to turn it on until after the drapes were up, but countless patients also had fewer perioperative complications related to hypothermia as a result of a focus on temperature maintenance in anesthesia and surgery.
The tools we use in the operating room have a lot of last names. Miller. Macintosh. DeBakey. Wilson frame. Kelly clamps. Magill forceps. Mayo stands. Wouldn’t you like to have your name on something like that?
If you have an idea for a medical device but don’t know where to go with it, today’s guest author can point you in the right direction. Peter. D. Sleman is the author of The Physician Inventor: The Doctor’s Handbook to Patenting Medical Devices and Methods, and he’s recognized that others, like Dr. Augustine, reached FI rapidly by inventing and patenting a medical device.
What might it take to reproduce those results?
Medical Device Patent: A Quick Path to Financial Independence?
For physicians, one of the most underutilized techniques to achieve financial independence is through intellectual property. Almost every physician I meet knows a colleague who invented a medical device. Yet for most physicians, the patent system is completely foreign. The confusion is mainly due to the great deal of misinformation online. One company will market patent services for $200, while another will ask for $20,000.
Then there are a host of invention promotion companies like InventHelp who talk a big game, but rarely deliver. Cost aside, there are practical questions that need answers. Who do I talk to? Where do I start? Do I need a confidentiality agreement? Realistically, how much will this cost?
In my new book, The Physician Inventor: The Doctor’s Handbook to Patenting Medical Devices and Methods, I provide a guide to physicians who are interested in the patent system. Here, I would like to dispel three common myths about the patent system and lay the groundwork for you to learn more.
First: A Patent Is A Lottery Ticket
You may have heard of a friend or colleague that has licensed a patent to a manufacturer and made some money. How prevalent is this exactly? Is licensing a medical device patent simply like winning the lottery? The answer may surprise you.
In the United States, payments made to physicians from medical device manufacturers and drug companies are open to the public. You can explore some of that data yourself at the U.S. Government’s Open Payments Data. You can even search the data by a specific specialty.
For example, suppose that you want to know how many interventional radiologists made more than $100,000 in 2017 from a license or royalty. The data is open to inspection and you will see that seven such payments were made ranging from $103,891.03 to $248,260.66. You can even look into each payment and find information on the specific device in question.
There are always stories of a physician who hit a home run and made tens or hundreds of millions of dollars from a device, but there are also plenty of singles and doubles that make it worthwhile to pursue an idea. To be fair, there are also strikeouts, and you should consider your invention as you do every other business opportunity—objectively and after doing the proper due diligence.
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Second: I Don’t Have the Resources
A more educated public now has instant access to previously difficult to obtain information. This educated public is the “raw material” necessary to produce useful knowledge, and it can form such useful knowledge by relying on online resources from other members of the public.
From an IP perspective, patents and published applications are now readily accessible from sites like Google Patents and others. Google Books allows the public to search millions of books in a matter of minutes to find relevant information, and even has the capacity to locate where these books are found in local libraries. If they are not available, you can download the e-book version in seconds for only a couple of dollars.
Sites like Meetup, Upwork and LinkedIn facilitate connection with others in the industry who may be able to provide additional assistance or complementary skill sets. YouTube offers practical tutorials on every conceivable subject.
Moreover, access to venture capital is more abundant than ever. As a result, more options are available to work outside of the closed innovation model. This is especially true for physicians who typically have access to funding from a more affluent social circle—at least enough to get started.
These same factors (an educated populace and venture capital) have also created qualified external suppliers that are necessary to further research and develop an idea. Medical device manufacturers have access to highly competent and educated engineers. But so do you, and the perfect consultant is easier to locate now than ever.
Third: I Don’t Want To Be A Patent Troll
“Patent troll” is a pejorative term for one who attempts to enforce a suspect patent right against an accused infringer. Patent trolls do not typically practice their inventions—that is, they have no intention to bring their devices to market—but pursue licenses from those that do.
A less loaded term is a Non-Practicing Entity (NPE). NPEs may include inventors who do not practice an invention, as well as firms who buy IP and offer it to larger companies for a fee. There is a lot of spilt ink on whether every NPE is a patent troll. Depending on the narrative that you hear, an NPE is either the story of a goliath trying to crush the little guy, or a slick extortionist who tries to game the patent system.
Physicians shudder at the possibility of being labeled a patent troll. For one, being called a patent troll not only denigrates the physician professionally, but also ascribes a nefarious motivation to their actions. “You are doing this for the money, and you are hurting patients in the process.” If your goals are to advance the practice of medicine, pay no mind to this nonsense. There are plenty of willing partners who will appreciate your contribution and treat you fairly.
One thing to understand is that every sizable device manufacturer files thousands of patent applications each year, but only a few of them ever cover a commercial product. Most of the patent applications are filed to preserve opportunities for a later date. Some are even filed intentionally as a way of building an arsenal against a competitor, or as potential landmines.
No large device manufacturer is ever called a patent troll, and it would be a bit hypocritical to expect that a physician will invent and bring to market each one of his inventions with far more limited resources.
Simply put, physicians are uniquely qualified to advance the art and should be encouraged to do so. The motive is irrelevant so long as patient outcome improves, and a financial incentive does far more good than harm.
It’s About More Than Money
Most physicians are altruistic. While the financial component of inventing is attractive, there is also a desire to advance medicine, and make patient care easier, safer, and more comfortable.
Before transcatheter aortic valve replacement (TAVR), open heart surgery required a lengthy recovery. Now there are stories of patients walking about within hours of heart valve replacement. TAVR was pioneered by physicians well before the industry took notice. Regardless of motivation, when physicians invent, we all win.
Peter D. Sleman is a partner at the intellectual property boutique of Wei & Sleman LLP. He specializes in medical devices and represents dozens of physicians and device manufacturers. His new book, The Physician Inventor: The Doctor’s Handbook to Patenting Medical Devices and Methods, is available at Amazon.
This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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Do you know someone (or know someone who knows someone) who has found wealth by patenting a medical device? Do you have an idea for one yourself? Without giving away your secrets, let us know in the space below!