COVID-19 + (MedTech & healthcare innovations) = patient data privacy & IP protection legal concerns

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MedTech in the age of COVID-19

Remote diagnostic tools

The outbreak of COVID-19 saw new uses for remote diagnostic tools. In the United States, the first case of COVID-19 saw the use of robot doctors in order to safely provide treatment to those who are infected without causing more risks to the care providers. The recent outbreak of COVID-19 has also spurred Chinese innovators to create their own version of remote diagnostic treatment technology with mini health diagnostic programme to help user to self-assess their COVID-19 exposure risks.

Innovators of remote medical services should be mindful of potential patient data privacy and confidentiality issues especially considering that the transmission of patient’s data is at the core of their services. In Hong Kong, aside from the commonly known Personal Data (Privacy) Ordinance (“PDPO”), the safe storing and transmission of patient’s data is further regulated by the and Electronic Health Record Sharing System Ordinance (“EHRSO”), meaning, those who trade using health data is under more scrutiny than traditional businesses. Our firm is poised to advice medical companies of such data privacy issues.

 

Induced creation of new drugs and medical equipment

Since the outbreak of COVID-19, medical companies globally have raced to create everything ranging from treatment plans, drugs to cure symptoms to vaccines to immunize the un-infected populace.

Within weeks after identifying the DNA and RNA sequences, various medical companies across the globe has claimed that they have devised a vaccine to COVID-19. For example, when Moderna announced that their prototype COVID-19 vaccine is ready for human trials in late February 2020, the company’s stock shot up by 15%. Other innovative advances induced by COVID-19 ranged from newly enhanced household protective gears (e.g. antibacterial nonwoven garments and products) to novel pharmaceutical products.


Legal issues arising from MedTech innovation

Innovator will understand that in order to truly enjoy the fruits of their innovation, (i) they will need to ensure that their products are legally compliant and (ii) their intellectual property rights will need to be properly protected.

The situation surrounding COVID-19 has already led to the spark of the greatest patent race of 2020 with various Chinese entities attempting to patent and manufacture treatment. For example, not long after the outbreak of COVID-19 became an accepted fact, the Wuhan Institute of Virology applied (in China) for a patent which covers the combination of remdesivir with anti-malarial drug as a treatment plan for COVID-19. This application soon drew the attention from Gilead Science Inc. (an American company) as they were the holder of the patent for the treatment plan that use remdesivir against SARS and MERS. The situation soon came to ahead when BrightGene (a Suzhou based company) began mass producing active ingredients for remdesivir without applying for a licences from Gilead Science Inc. Our multi-disciplinary IP practices stand ready to assist clients as to how they can safeguard their IP rights and/or licence out their existing IP rights so that their innovation can achieve maximized utility in today’s environment.


Conclusion

In the age of COVID-19 driven innovations, it is crucial that MedTech and Healthcare companies are properly advised on their new products as they come onto the markets. Often times, general demands meant that such new products will need to be used nearly as soon as they become available. Nonetheless, special attention should always be paid towards:

  • Whether such medical services/products will handle patient data?
  • Are such patient data protected with transmission duly secured?
  • Are all relevant patient data protection and privacy issues dealt with at the start?
  • Are the products original works, and if so, are they patent or copyright protected?
  • If not an original work, have the operators of such add-on innovations secured relevant licences?
  • On the contrary, if you are the owner of the intellectual property and such product is being used as a foundation for new innovations, have such parties secured the necessary licencing rights from you?

 

Our firm’s specialist IP team is poised to advise on the above and any related issues.

For enquiries, please contact our Intellectual Property & Cyber Law Department:
E: ip@onc.hk                                                                        T: (852) 2810 1212
W: www.onc.hk                                                                    F: (852) 2804 6311

19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2020