[Editor's note: This story originally was published by Real Clear Health.]
By Joel White
Real Clear Health
If historians find any silver lining in the tragic COVID-19 pandemic, it will be that it accelerated America’s embrace of health care modernization. But the future of telehealth is threatened and potentially hobbled by lawsuit abuse from “patent trolls” (euphemistically known as Non-Practicing Entities, or NPEs). Patent trolls are scam artists that abuse the patent system for their own personal gain – posing a threat to the high-tech innovation that supports modern telehealth.
The most recent abuse threatens to inhibit mobile device use that has powered so many medical visits during the pandemic. That would be a shame, as telehealth has been a huge bright spot during the COVID crisis. As regulators waived most rules inhibiting its use, access, choice and affordability dramatically improved at a time when in person visits were simply impractical.
Modernizing how Medicare covers and reimburses telehealth services is critical to continuing the momentum, as newfound flexibilities will evaporate once the public health emergency expires. This is a legitimate fear.
But Congress should also address inadequacies at the International Trade Commission that embolden patent trolls – NPEs – to halt progress across entire industries. NPE cases do nothing to help patients, providers or health delivery, but they can do great harm to telehealth, as NPEs often leverage obscure patents to sue for patent infringement and demand massive financial settlements from manufacturers just to keep their products in the marketplace. Telehealth companies are especially vulnerable to such extortion since their products - and the smart devices that support them -- are in demand, highly complex and involve thousands of patents.
The ITC is an independent, quasi-judicial federal international trade agency established to protect the public interest by investigating and making determinations about unfair trade practices, including infringement on intellectual property rights, against US manufacturers. The primary remedy at the ITC goes well beyond the courts; the ITC directs the Customs Service to stop imports that infringe patents from entering the country. Before doing so, though, the ITC is supposed to consider the broader public interest to be sure this serious step is actually good for America.
In more than 750 investigations over the past 15 years, though, the Commission has never refused to issue an exclusion order because of the public interest. In fact, the last time the ITC refused to issue an exclusion order on public interest grounds was in 1984. That is a problem.
Two especially egregious patent infringement cases filed at the ITC threaten the continued adoption of telehealth services. These cases involve an Ireland based NPE, Neodron, that purchased some patents related to certain touchscreen features. This provided a pathway to sue major tech companies like Apple, Amazon, Microsoft and others that make smartphones, tablets and touchscreen laptops.
A Neodron victory could block access to around 90% of the devices that Americans rely on to access mobile health services, obliterating the platforms needed to advance telehealth.
Why the ITC is allowing such a case to proceed is an open question, but a new bill in Congress, the “Advancing America’s Interest Act” (AAIA) should help restore ITC to its original mission.
This bipartisan legislation, sponsored by Representatives Suzan DelBene (D-WA) and David Schweikert (R-AZ) would severely limit the ability of NPEs like Neodron to bring ITC complaints by, for example, forcing the ITC to stop making decisions in a vacuum but instead “affirmatively determine” that each decision actually serves the public interest.
The bill modernizes the ITC process to ensure that its resources are properly directed toward advancing America’s interests in protecting American industry, workers, and consumers. If enacted, it will allow consumers to use mobile devices to access care remotely by eliminating the threat of patent trolls in limiting access to mobile platforms.
Crises like COVID-19 have changed what people expect from government when it comes to health care. They want more modernization, convenience and access. There’s no appetite for government agencies to protect providers from competition or allow lawsuit abuse that hurts Americans and threatens health care progress. This bipartisan legislation reflects the same priorities: it will help focus the ITC on acting as a protector of the public interest as the way it is supposed to be.
Reforming the ITC is an important step to ensuring telehealth continues to flourish in American health care. We are still on the front end of expanding telehealth’s potential, and the future appears very bright indeed, so long as we don’t give into the trolls.
Joel White is the Executive Director of the Health Innovation Alliance, a multi-stakeholder advocacy alliance that supports policies to use data and technology to make health care work better.
[Editor's note: This story originally was published by Real Clear Health.]
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