MEDICAL DEVICES
benchmark for product competitiveness. RE is also particularly eff ective for gathering evidence of prior art to invalidate assertions of infringement, as well as for underpinning assertions against a competitor that is posing a threat to market share. Using RE to generate evidence of use of patented technology is a key to successful assertion of patents and, therefore, to maximising the return from innovation.
Rigorous management of a patent portfolio becomes all the more important as the ‘state of the art’ becomes more sophisticated. When it comes to microelectromechanical systems (MEMS) and bioelectrical technology, the very materials and manufacturing processes used can be subject to patent protection. Beyond the data gathered from visual inspection of a device’s components through a product teardown, advanced processes to analyse semiconductor technology must be employed for detailed cost estimation, competitive analysis and patent infringement analysis. T ese technical analysis processes include semiconductor structural analysis and circuit extraction.
Structural analysis reveals construction and fabrication details as well as the elemental
composition of various materials, using techniques such as mass spectrometry, scanning electron microscopy and energy dispersive x-ray spectroscopy. T is depth of analysis is particularly important when dealing with devices such as MEMS with nano-scale moving parts, as well as sterile-sealed packaging designed to go inside the human body. It can show if a patent is being infringed and provide the technical intelligence needed to bring a product to market that does not violate existing patents.
Circuit extraction involves taking apart a chip, layer by layer, to study its design and functionality. A complete circuit extraction yields all the information necessary to reproduce the chip. It can provide solid evidence that is admissible in court to defend or assert a claim of patent infringement.
A well-targeted and executed IP programme, supported by a combination of technical and patent analysis, can help a company achieve strategic goals in a highly competitive marketplace. It can serve as the basis for forging favourable business deals and establishing advantageous competitive positions. It can diminish a competitor’s business momentum or undermine the confi dence of its business partners. It can block a competing
product’s market entry or delay introduction by forcing product redesign. It can also impose signifi cant cost disadvantages on the competing product by levying royalties.
Semiconductor and consumer electronics companies are particularly adept at employing IP programmes for these purposes. In wireless technologies, an area most relevant to the medical devices market, heated battles have occurred between major players. RIM settled two patent suits with close to a billion-dollar US settlement, and then spent hundreds of millions to acquire patents to avoid further litigation. Qualcomm and Nokia recently settled a multi-year litigation case with patent licensing and business deals. And Qualcomm and Broadcom previously settled a dispute through business agreements and a $890 million payment by Qualcomm. Even the darling of consumer electronics, Apple, isn’t immune to the high costs of IP litigation. Nokia is suing Apple for patent infringement on 3G technologies, while Apple is suing HTC, claiming infringement of more than 20 patents. In all cases, both fi nancial and strategic goals are achieved upon settlement.
www.worldipreview.com
World Intellectual Property Review November/December 2010
61
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