Intellectual property and the NHS18/04/18
Our NHS clients have experienced a rise in the number of intellectual property rights claims brought by independent / private health providers, photographers, authors and, increasingly, healthcare application or website creators.
The most common claims include:
- Copyright infringement
- Trade mark infringement
- Design rights infringement
- Database rights infringement
Capsticks have recently successfully helped resolve numerous intellectual property disputes, including:
- A copyright claim brought by the creator of a mobile phone based app which sought to help practitioners assess mental capacity. A CCG introduced a similar app which the original app creators claimed breached their copyright.
- Defending a copyright claim brought by a photographer who had found one of his images in Trust documentation.
- A Trust accused by an independent provider of healthcare of breaching their copyright, infringing their trade mark, passing off and registering a domain name in bad faith.
The evolving law around unjustified threats
The law surrounding intellectual property rights is complex and ever-changing, requiring depth of expertise. Up to date experience is vital when dealing with legal challenges.
Of real importance is the way the law has evolved over the past year to deal with “unjustified threats”. The Intellectual Property (Unjustified Threats) Act 2017 (“the Act”) came into force on 1 October 2017 following a review of the law of unjustified threats and recommendations made by the Law Commission.
Depending on the facts, the Act may allow “an aggrieved person” to bring an action against the person making the threat on the basis that the threat is “unjustified”. In certain circumstances the Act allows a potential defendant to get on the front foot and bring a claim against the potential claimant. A threat may be “unjustified” if no relevant intellectual property right exits, no infringement has taken place or the right in question has expired or is invalid.
What can NHS bodies do to prevent claims in the first place?
Any new website, literature, mobile phone based application or literature should be considered from an intellectual property point of view before publication. Often, an internet search can reveal if a third party has already published similar content and trade marks can easily be checked online.
Legal costs, the time taken in restructuring / unwinding allegedly infringing material and, ultimately, compensation can be avoided by identifying other parties’ intellectual property rights before publishing potentially infringing material.
We regularly advise on potential breaches of intellectual property rights before publication thus reducing the likelihood of future claims.
How can NHS bodies defend themselves against threatened proceedings?
There are a number of defences available to parties accused of breaching intellectual property rights but often the most effective form of defence is to put the claimant to strict proof in terms of any alleged losses and rights claimed.
Capsticks provides fast and cost-effective advice on the merits of defending a claim and on negotiating strategy.