Protect Telemedicine From Counterproductive Trade Disputes

Protect Telemedicine From Counterproductive Trade Disputes
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Telemedicine has helped pull Americans through the pandemic and will continue to play an increasingly significant role in our health care system in the future. We have to make sure patient access to this valuable medical tool is not blocked by corporate legal battles that have nothing to do with health care.

Telemedicine is here to stay. E-health tools have been around for several years but their adoption really took off during the pandemic when patients wanted to secure medical services without venturing out of the house and into care facilities. Doctors and hospitals were eager to embrace telemedicine services too, when their operating revenues plunged due to canceled appointments and elective procedures. The CEO of Cincinnati Children’s Hospital reported that their telehealth visits went from 2,000 in all of 2019 to 5,000 a week by July of 2020.

Throughout the health care system, telehealth usage grew exponentially last year.  The number of telehealth medical claims increased by more than 3,000% nationally from October 2019 to October 2020.

MDLive, a company that facilitates virtual doctor visits, saw appointments almost double in the first half of 2020. Their dermatology calls increased by 350% and behavioral health visits, particularly important during the stressful pandemic, shot up 500%. Additional data from McKinsey & Company showed that telemedicine has helped to preserve access to behavioral health care at a time of increased psychological distress resulting from the pandemic. Indeed, my daughter benefited from telehealth appointments that secured needed care through the Covid crisis.

Cincinnati Children’s CEO Michael Fisher estimated that telehealth could make up almost a third of their health care visits in the future. That’s not an unreasonable prediction. Even when the fear of virus infection has ebbed, people are still going to want the convenience and rapid access to care telehealth provides.

The growth of telemedicine will be totally dependent on consumer access to the internet and the devices needed to connect to it. If either of those are not readily available, the benefits of virtual medical care will be lost. That’s why we need to be on guard against threats to our ability to get online and access broadband enabled services.

As I’ve written about before, a recurring obstacle to unfettered access to connected devices is once again playing out now before the U.S. International Trade Commission (ITC). In line with a disturbing trend of weak patent infringement claims being brought to the ITC instead of the court system, the Swedish company Ericsson has filed a complaint against major tech supplier Samsung, alleging that Samsung’s wireless connected devices – smartphones and tablets – have violated Intellectual Property (IP) rights acquired by Ericsson.

Ericsson wants the ITC to issue what is known as an exclusion order, basically a ban on the importation of those devices until their infringement claim is resolved. But what they really want is a payoff. Ericsson doesn’t even make competing devices, they are simply misusing the ITC’s power to force Samsung into settling to avoid an import ban on their products. Limiting choice and competition for devices at a time when patients are relying on them to access life-saving telemedicine services is a dangerous proposition.

In a second and separate ITC complaint, Ericsson is also seeking exclusion orders on patents relating to Samsung’s 4G and 5G cellular infrastructure equipment such as antennas and radios, base stations, and core network products. Keeping Samsung’s 4G and 5G equipment off the U.S. market wouldn’t do consumers any good either. Samsung is a key supplier of 5G network gear to many internet providers like AT&T and Verizon. The loss of their infrastructure supports could have serious negative impacts on the rollout of advanced 5G networks and make it harder for unconnected communities to get connected and go online, including patients who want to access online health care consultations and other telemedicine services. In response to Ericsson’s actions, Samsung has filed counterclaims.

Companies that target legitimate businesses with dubious IP infringement legal actions in hopes of getting a lucrative payoff (many companies find that it’s easier and cheaper to just give in and settle than go to court) should be forcefully rejected by the ITC.  It’s bad enough when companies use the traditional court system to extort licensing fees, but taking up the ITC’s time and resources is even worse, and this problem is only growing because obtaining an ITC exclusion order can be much quicker than winning a monetary award from a judge.

Change is needed. Congress has debated ITC reform for years but has yet to take aggressive action to reign in these disruptive practices.  It’s time for Congress to send a strong signal that the ITC is not to be abused by opportunistic patent holders.  ITC reform is long overdue.

Jerry Rogers is the editor of RealClearHealth and the host of the 'Jerry Rogers Show' on WBAL NewsRadio. Follow him on Twitter @JerryRogersShow.

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