The COVID-19 pandemic and the future of telehealth services.

There isn’t a whole lot of good news that has resulted from the coronavirus pandemic, but we can look to the healthcare industry and see several positive outcomes.  One is the pace at which new vaccines have been developed, trialed and approved for use.  Considering how successful that initiative has been, It’s likely that we’ll never go back to the “snail’s pace” approach of yore in developing new pharmaceutical products — and few people are likely to complain about that.

Another positive development is the wholesale adoption of telehealth services.  Until the pandemic, telehealth was taking its own time being adopted by medical practitioners and patients, and it was little more than a novelty in many quarters. 

That’s all changed.  Telehealth has been a huge bright spot during the coronavirus crisis.  As regulator eased rules inhibiting its use, access to telehealth — and its affordability — have dramatically improved in a time when in-person doctor visits have proven impractical if not impossible.

Speaking personally, I have engaged in several telehealth sessions with my primary care physician since March of this year.  My experience has been nothing but positive — and so much more convenient than hoofing it to the doctor’s office while feeling under the weather.

Also important to the continuing adoption of telehealth services is how Medicare and other insurance programs cover and reimburse providers for telehealth services, and we can only hope that those newfound flexibilities won’t disappear once the public health emergency subsides.

Beyond the possible resurgence of regulations, there is another risk to the long-term viability of providing telehealth services to patients, and it comes in the form of “patent trolls.”  Those are the obnoxious non-practicing entities (NPEs) that scoop up obscure patents and then proceed to sue other companies that are unwittingly using the patented technology.

In nearly every case, the NPEs in question add no value whatsoever to the marketplace, but seek instead to line their own pockets by leveraging obscure patents to sue for infringement and seek massive financial settlements from the “offending” manufacturers just to keep their products in the marketplace.

Telehealth service providers are especially vulnerable to such extortion attempts since their products (including the smart devices that support them) involve highly complex operating systems utilizing hundreds or even thousands of patents. 

At the moment, two particularly egregious patent infringement cases have been filed with the International Trade Commission, the quasi-judicial federal international body that investigates and makes determinations about unfair trade practices.  Both lawsuits emanate from Neodron, an NPE based in Ireland which purchased a number of patents related to certain touchscreen features.  Immediately upon gaining ownership of the patents, Neodron proceed to file suit against Apple, Microsoft, Amazon and other tech companies that are in the laptop, tablet and smartphone manufacturing business.

A Neodron victory, if it happens, could block access to as many as 90% of the devices Americans rely on to access mobile health services, thereby crippling the platforms needed for telehealth functionality.

Unfortunately, the ITC has a history of siding with the patent trolls.  In fact, in more than 750 investigations conducted over the past 15 years, the ITC has never refused to issue an exclusion order based on the public interest.  One would think that telehealth functionality would qualify as being in the public interest, but the track record so far doesn’t bode particularly well for such a ruling.

Recognizing the threat, the U.S. Congress is now getting in on the act.  Bipartisan legislation has been introduced in the House of Representatives that would curtail the ability of NPEs to bring ITC complaints.  Let’s see if that legislation will actually become law — and in so doing help telehealth services maintain their forward momentum in changing the way that healthcare is delivered to patients.

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