Seniors have been taking advantage of telemedicine services, often accessed via their smartphones, tablets or laptops, for some time now. But the coronavirus has put that trend into overdrive, as more older Americans look for ways to stay safe while still getting the medical care they need.
The Trump administration has helped accelerate telemedicine for seniors. The U.S. Centers for Medicare & Medicaid Services (CMS) announced new initiatives at the end of April to increase access to telehealth services. At a White House coronavirus task force meeting recently, the President said that the number of Medicare recipients using telehealth had increased from about 11,000 patients a week to more than 650,000.
The COVID-19 pandemic also accelerated this trend. Many seniors are enthusiastic mobile technology owners. They use their mobile devices to supplement or take the place of traditional office visits or other communications with health care providers. In a January 2020 survey of older Americans – taken prior to the pandemic – 38% had already used their smartphones or tablets to manage or receive medical care in the last three months. More than half of respondents said they preferred to handle their medical needs with a combination of health care professionals and technology, and 32% had used their smartphones or tablets to track their health and fitness routines.
Those numbers are bound to increase as we continue to deal with the coronavirus, especially understanding it will take considerable time to produce a widely available treatment or a vaccine. Even when things return to “normal,” people will likely rely more heavily on mobile devices to manage their health. And we should strongly encourage this, ensuring government policy gives our seniors access to telehealth across the board, given how effective and efficient telehealth is proving to be.
Shockingly, seniors (and everyone else) could see telehealth opportunities falter in just months from now, due to troubling actions playing out before a little known federal agency called the International Trade Commission (ITCInternational Trade Commission). An Irish company called Neodron, recently created just to try to get rich quick through exploitive litigation, is claiming at the ITCInternational Trade Commission that a large number of the world’s major technology corporations have infringed on a handful of touchscreen related patents Neodron just acquired. Although Neodron’s claims lack merit, given the unusual process at the ITCInternational Trade Commission, it is still all too possible Neodron could succeed in blocking the importation of the crucial smartphones, tablets, laptops and other touch screen devices used by millions of Americans.
Neodron is a type of business known as a patent assertion entity or, more commonly, a patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms.. The company was established for the sole purpose of obtaining whatever patents it could find to use as the basis for filing patent infringement suits. Neodron’s actions are especially dangerous because they focus on the ITCInternational Trade Commission. Unlike a court, the ITCInternational Trade Commission cannot offer money damages for possible infringements and therefore cannot calibrate remedies to the facts. The ITC’s only power is to issue an exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. – a ban on importing a product into the U.S. market, which can occur on the basis of even just one minor patent claimThe section of a patent that describes the legal scope of the invention. Patent claims are supposed to establish the boundaries of the patentee’s entitlement to exclude. Under peripheral claiming as practiced in the U.S., claims establish the outer bounds of the patentee's privilege to exclude others. For further reading, see Burk and Lemley, Signposts or Fence Posts.. And even though claims of infringement from trolls may not ultimately stick, trolls have become skilled at essentially extorting tech company targets whose products can encompass thousands of patents. For these companies, the threat of excluding an entire product from the US market on the basis of a single patent claimThe section of a patent that describes the legal scope of the invention. Patent claims are supposed to establish the boundaries of the patentee’s entitlement to exclude. Under peripheral claiming as practiced in the U.S., claims establish the outer bounds of the patentee's privilege to exclude others. For further reading, see Burk and Lemley, Signposts or Fence Posts. creates an intolerable choice between extortion and exclusion.
Neodron is trying to leverage this ITCInternational Trade Commission power right now with its threat to prevent major tech innovators – including Apple, Samsung, Hewlett Packard, Amazon, Microsoft, and Dell – from offering their touchscreen smartphones, tablets, readers, and computers to U.S. consumers. This is an alarming development, jeopardizing access to the US market for more than 90% of these key devices, in an underhanded gaming of the system. The ITCInternational Trade Commission needs to recognize these tactics for what they are and decisively counter the threat to US consumers created by patent trolls who attack key innovators and provide no benefit to the American economy.
In normal times, Neodron’s attempts to game the system would merit sharp condemnation, but amid the crisis brought on by the coronavirus, Neodron’s actions are truly reprehensible. This company is truly an enemy of American seniors who are most vulnerable to COVID-19 and must stay connected. With no end to the pandemic in sight, full access to health technologies that deliver medical care and allow safe communication with the outside world are critical to keeping elders free from exposure to deadly infection.
The value of telehealth services grows daily, and seniors, consumers, and policymakers alike are intensifying the call for more and improved access to telehealth services. Given the threat Neodron poses to that access, action needs to be taken to raise awareness and turn the tide against Neodron’s misuse of the ITCInternational Trade Commission. Let this article be a first step toward preventing severe damage to our telehealth capabilities and the millions of Americans who rely on them.