AI Innovation in Healthcare

John Smith Stadium

Copyright owner Arne Műseler Licence CC BY-SA 3.0 DE Source Wikimedia Commons

 

Jane Lambert

Earlier today I attended the "AI Innovation in Healthcare" conference on the third floor of the John Smith Stadium in Huddersfield.  It was one of the first events of the Huddersfield Health Innovation Partnership.  It began at 09:30 and ended at 15:30. Pathfinder Healthcare Developments C.I.C which helped to deliver the conference has posted some photos of the venue and a summary of the event on  LinkedIn.  The audience included academics, clinicians, computer scientists, healthcare professionals, investors and software developers   As far as I could see I was the only lawyer and I did not recognize any patent attorneys.

The morning started with breakfast.  After registration, attendees were offered a choice of yoghurt and cereal or fruit salad and hot drinks    The programme began with a keynote speech from Dr. Mina Gupta Chair of the Modality Partnership.  She outlined the services for patient care in the United Kingdom, the gradual automation of those services that had taken place in her lifetime, clinicians' attitudes towards automation and the use of artificial intelligence in primary care practices.  As I was mindful of the privacy, copyright and database rights issues that had arisen over AI training I asked her about the training of those systems.  She replied that they had been developed by third-party suppliers but that there had been no data quality or security issues.  I met her during the first coffee break when she amplified her answer and spoke in more detail about the resourcing of research.

The next programme consisted of debates and discussions.  Two panels of clinicians and computer experts discussed four motions relating to the use of artificial intelligence in healthcare.  After each motion groups of audience members who had been seated around tables were invited to discuss and vote on each of the topics.  I can't remember all of the motions but one was over whether leadership was the primary driver for the use of artificial intelligence.

Lunch consisted of a mixed salad with a choice of chicken or vegetarian accompaniments.  I circulated as much as I could during lunch and met an angel investor, a journalist and a sales representative for one of the AI systems suppliers,   I also visited the stands of Skin Analytics and Blue Prism and learnt about their products.  After lunch the auditorium was partitioned and we were divided into two breakout groups.  I joined the regulatory and ethical issues group which was addressed by two very interesting speakers.  

The first was a member of Google Healthcare's team in the UK.  He explained that Google contributes technical solutions to healthcare devices in developed markets such as the UK but did not create such products by itself.  He discussed some of the projects in which his company had been involved.  As I had recently read Lord Justice Birss's judgment in Comptroller General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd [2024] EWCA Civ 825 (19 July 2024) in which he explained in everyday language how artificial neural networks ("ANNs") work I asked the speaker whether the systems that he had described ran on ANNs or whether digital computers could be programmed to emulate such platforms.  He replied that his systems ran on ANNs.

The last speaker was Michael Watts of Blüm Health and I found him to be the most interesting speaker of the whole day,  He is both an entrepreneur and a doctor which is a rare combination and holds business as well as medical qualifications.   He had co-founded Blüm Health which is described on its website as a one-stop-shop digital health delivery partner.   He discussed some of his company's products and services in his presentation.   Being mindful of the Court of Appeal's decision in Emotional Perception I asked him about the legal protection of his software.  He replied that he was aware of the computer programs' "as such" exclusion from patentability and relied on copyright and first mover advantage;   I was very impressed by his talk and congratulated him on it afterwards.

The day finished with a group photo which was appropriate as it was very much an NHS family event.   I would have appreciated a little more focus on the technology and perhaps more discussion on intellectual property, data protection and other legal issues but then I am a friend and not a member of that family.  From the chatter that I heard on the way out the event had been enjoyed and appreciated.   It was certainly a good use of my time.

Anyone wishing to discuss this article can call me on 020 7404 5252 during UK office hours or send me a message through my contact form.

IP Training in Doncaster

Doncaster Minster

Author: Frees  Release of copyright CCC 1.0   Source Wikipedia Doncaster

Jane Lambert

Yesterday I delivered a half-day workshop on intellectual property law to a prominent South Yorkshire law firm at its officers in Doncaster.  My audience consisted of contentious and non-contentious law practitioners in company/commercial, dispute resolution and employment. Their experience ranged from head of department to trainee.

The timetable and syllabus were as follows:

09:00 - 09:15   Registration and set-up

09:15 -10:00    Basic Concepts and Terminology: What is intellectual property? What is the difference between intellectual property and intellectual assets? What are intellectual assets? Registerable rights and non-registerable rights, Intellectual Property Office, EU Intellectual Property Office. European Patent Office. World Intellectual Property Organization, World Trade Organization. Intellectual Property List: Patents Court, Intellectual Property Enterprise Court, Small Claims Track, Chancery Division, County Court. Hearing officers. Remedies: injunctions, delivery up, account and inquiry, costs. Interim injunctions, search orders, freezing injunctions, blocking orders. Licensing: non-exclusive, exclusive, sole. Reports of Patent Cases, Fleet Street Reports.

10:00 - 10:45  How the Law Protects Brands: What is a brand? Law of Passing-off: Reckitt and Colman Products Ltd v Borden Inc.and Others [1990] 1 WLR 491, [1990] 1 All ER 873, [1990] UKHL 12, [1990] RPC 341. Trade mark registration: what is a trade mark? Trade Marks Act 1994, Directive (EU) 2015/2436, Regulation (EU) 2017/1001, Madrid Protocol, TRIPS, distinctiveness, specified goods and services, infringement, application process, opposition, revocation and invalidation Geographical Indications of Origin extended passing-off, certification and collective marks, EU legislation for foods and beverages, Other ways of protecting brands

10:45 - 11:00   Break

11:00 - 11:45  How the Law protects Designs Distinction between ornamental design and functional design Ornamental Design Registered Designs Act 1949,  Directive 98/71/EC Regulation 6/2002, novelty, individual character, registered Community designs, unregistered Community designs, infringement Functional Designs Part III Copyright Designs and Patents Act 1988, infringement Artistic copyright Surface decoration, artistic craftsmanship, Semiconductor topographies

11:45 - 12:30  How the Law protects Technology Common law obligation of confidence Trade Secrets Directive, Subsistence, Breach, Patents Patents Act 1977, European Patent Convention, Proposed Unitary Patent and Unified Patent Court, Patent Cooperation Treaty, Subsistence, Specification, Infringement, revocation, Computer software exception Plant Breeders' Rights

12:30 - 13:15   How the Law protects Creativity    Copyright, Part I of Copyright Designs and Patents Act 1988, Berne Convention, Subsistence, Restricted Rights, Exceptions, Infringement, Licensing    Performances Part II of 1988 Act 

Should any other firm in Yorkshire (or indeed elsewhere) desire such training, please call my clerk, David, on 020 7404 5252 and he will assist you further.

In-house IP Training

View of Huddersfield

Photo Wikipedia

Yesterday lunch time I visited a business in Huddersfield to talk to its staff about intellectual property ("IP"). An incident had occurred some months ago when it would have been to their advantage to have known more about IP. Sensibly the company's managing director sought training for its employees and asked a local business advisor to help. The advisor made enquiries at a neighbouring law school but their IP specialist could not assist so the advisor approached me.

That is the sort of invitation I am always happy to accept. As I explained in IP Services from Barristers 6 Apr 2013 4-5 IP:

"It is now permissible for members of the public to consult barristers directly under the Public Access scheme and there are sometimes advantages in doing so, especially in respect of intellectual property. Because we are independent and objective we can advise on the optimum legal protection for a new product or business. For instance, the instinct of a patent attorney is to recommend patent protection for a new invention and in as many countries as possible. Often, that is the best advice but when the inventor is an individual, start-up or small business more nuanced advice is required."

A barrister's job is to obtain the best legal outcome for his or her client and not simply to represent them effectively in court though of course we do that as well. Because we see a lot of disputes we can often spot pitfalls well in advance and advise on how to avoid them. And that is just what I did yesterday.

I was led into a conference room where a table was set up for lunch.  There were different types of bread, cold ham and chicken, fresh fruit salad, profiteroles and a chocolate Yule log. The managing director introduced the trainees, offered us tea and coffee and invited us to tuck in. There were four trainees.  All were women. They were all very bright and it became clear from the conversation that they all had substantial business experience. Each of those ladies had prepared a list of questions and they took it in turns to quiz me.

The first question was on artwork. They were often asked to do artwork for customers who later used it for purposes for which it was not intended. The customers thought they could do what they wanted with the art work just because they had paid a fee. The question boiled down to "who owns the copyright and what licences (if any) are granted or retained?" I referred the ladies to the Copyright, Designs and Patents Act 1988 and in particular to s.11:

"First ownership of copyright
(1) The author of a work is the first owner of any copyright in it, subject to the following provisions.
(2) Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.
(3) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations)."

Their company owned the copyright in any art work that they produced subject to any contract that the company may have made with its customer. That could depend on their company's terms and conditions or on those of their customer. I asked what the company's terms and conditions said about ownership of copyright in its employees' artwork. I was told that there were no terms and conditions. I replied that they should consider getting a lawyer or patent or trade mark agent to draft some for them.

One of the ladies asked whether it might be to their company's advantage "not to have a contract". I responded that they did have a contract but not a written one. In  a dispute over title to copyright in the artwork a judge and lawyers would scour the party to party correspondence, minutes and memos of meetings, previous dealings between the parties and what was normally done in transactions of that kind by other businesses in the industry. All that could take time and cost money and lead to a lot of uncertainty. Much if not all of that could be avoided by adopting a simple set of terms and conditions.

The next question was on artwork for quotations. Sometimes a customer asked them to prepare a quote which might involve quite a lot of work. The customer might reject the quote and take the work to a competitor who could undercut them.  I told them that had actually happened in Pensher Security Door Co. Ltd v Sunderland City Council [2000] R.P.C. 249 and that the Court of Appeal had held that the customer had infringed copyright by taking the design to another company and ordering goods from them.

They asked me how much it would cost for a lawyer or attorney to draft terms and conditions and I replied that it would be between £500 and £750 plus VAT. There was a collective intake of breath around the table suggesting that they thought it was a little on the high side. I decided to discuss the alternatives. "Some companies" I said "simply look at their competitors' websites and lift the legals from them. But that is a mistake for two reasons. First, copyright is likely to subsist in the terms and conditions just as it does in any other kind of work so copying the T & C even with a few changes here and there amounted to copyright infringement for which the copyist might be sued either by the person who drafted the terms or his client. Secondly, terms and conditions are intended to manage risk and the risks of the competing company might not be the same as the company's. It was like wearing another person's clothes. They might cover the body up to a point but they would not fit snugly or look very good."

I pointed out that terms and conditions are rather like the fortifications of Sandal Castle or some other medieval fortress. The first line of defence was the moat which kept out most of the undesirables of medieval Yorkshire such as waifs and strays, thieves and vagabonds, sturdy beggars and wild animals. In a company the moat corresponded to best practice. The next line of defence was the curtain wall from which defenders could rain down arrows, boiling oil and molten lead on more determined invaders. That defence corresponded to insurance. The last line of defence was the keep or bailey and if an invader got that far he had come a long way. That was where the hand to hand fighting might take place such as Macbeth against McDuff. The keep was like terms and conditions. They were for situations where best practice had failed and there was no insurance cover. The T & C had to be integrated with the insurance cover and best practice and that was where the work was to be done. When they considered that the cost of a law suit might run into the hundreds of thousands or even millions the ladies agreed that £500 to £750 was very good value.

We talked about IP insurance and I warned the ladies that many legal expenses insurance specifically exclude IP disputes. I advised them to check the company's policy and consider obtaining additional cover unless they were confident that they could fund any infringement claims that they might wish to bring or defend any revocation or invalidity claims that others might bring against them. They asked about the costs of litigation and I told them all about the Chancery Division and the chancery county courts, the Patents Court, IPEC including its small claims track and other options such as the IPO hearing officers, IPO examiners' opinions, domain name dispute resolution services and various mediation services. One of the ladies asked me to explain the difference between patents and copyrights which led to a discussion on intellectual assets and the different forms of legal protection. Another asked about IP protection abroad and I told them about TRIPs and the international conventions.

I had been booked for an hour but the session lasted nearly double that time. None of us was looking at the clock. The conversation was lively and stimulating and I think we all enjoyed ourselves.  If any other business, law firm or patent or trade mark agency in Yorkshire or indeed anywhere else wants me or one of my colleagues to lead a similar discussion he or she need only ask. I would normally charge about £350 + VAT for a session of this kind but as the initial enquiry had come through a connection who had recommended me in the past I did it for free.

If anyone wants to discuss this article or IP law generally he or she should call me on 020 7404 5252 during office hours or use my contact form.

Finally, I should like to wish all my readers a very happy New Year.