Picture this. A surgeon sits at a video screen
intently watching the image, using hand controls
to manipulate surgical instruments in a patient’s
body. It’s robotic surgery, although not in
the sense of a machine doing the thinking. Here,
the machine is an extension of the surgeon’s
own hands.
Robotic surgery is the centerpiece of an ongoing
patent dispute, a dispute that illustrates of how
far a patent can cover a certain technology.
Intuitive Surgical is a California company specializing
in precision surgical robotics. It makes the da
Vinci surgical system, which is an extension of
more conventional, and less expensive, endoscopic
and laproscopic surgery.
In traditional endoscopic surgery, small incisions
are made and a suite of tubes is inserted to perform
snipping and other surgical-type procedures. The
surgery is less invasive than normal surgery where
the incision has to be large in order to accommodate
a surgeon’s hands and a sufficiently large
field of view. Patients recover faster. Robotic
systems, although costing more, offer surgical precision.
Little motors precisely and minutely move the surgical
instruments, instead of cables and other mechanical
links in traditional endoscopic surgery.
Dr. Wilk, a New York surgeon, invented a surgical
robotic system and obtained a couple of patents.
His company sued Intuitive, as well as a competitor,
Computer Motion, maker of a system known as Zeus.
In the Intuitive case, the da Vinci system had just
about everything that the patent called for, including
an endoscope, a camera on the endoscope to take
the video pictures, a wireless transmission system
to send and receive signals to and from a remote
location (like a video screen), some type of surgical
instrument and an actuator to move the instrument
inside of the patient.
The dispute centered on just how far away, or how
remote, the video screen had to be from the patient.
In order to distinguish over traditional endoscopes,
where the surgeon is right by the patient, the patent
required the video screen to be at “a remote
location beyond the range of direct manual contact.”
Now, we live in a society where every time a TV
is bought it’s accompanied by a remote. Is
it even possible to buy a TV and ask for the model
without the remote? TV manufacturers know there’s
nothing better than relaxing in an easy chair switching
channels between games. It sure beats the old broomstick
approach, where you had to have the steady hands
of a surgeon to hit the right button with the tip
of that stick. Based on this cultural familiarity,
one would think that figuring out the meaning of
“remote” would be… trivial. But,
it takes a patent case to tell us otherwise.
Intuitive took the position that the patent required
the surgeon and his instruments to be so remote
as to be outside the operating room. The patient
obviously stays in the operating room, so remote
means separating the surgeon from the patient by
a wall or something. The patent owner said that’s
way too remote; the patent only talks about beyond
arm’s length. Naturally, this definition neatly
fits the da Vinci system, while Intuitive’s
definition neatly excludes the da Vinci system from
the patent.
You have to hand it to Intuitive. Despite our common
practice of using remotes in the same room as the
TV, it convinced a federal judge that its definition
was correct; the surgeon needed to be outside of
the room. Unfortunately for Intuitive, the three
appellate judges who reviewed the first judge disagreed,
adopting the more common meaning of remote. The
appeals court wrote extensive reasoning, explaining
when dictionaries could be used and when they should
be ignored, discussing the ordinary and customary
meaning of words and so on.
Now that the remote recesses of patent interpretation
have been solved, the case returns to the first
judge for further proceedings. Intuitive could make
the case closer, by moving its video screen “next”
to the patient, whatever that means.
***
Speaking of remote, trademarks are an expression
of the goodwill of a company. Customers look for
brand names to save themselves time and provide
confidence in the product. That’s why companies
go to great lengths to protect the value of their
trademarks.
Some companies don’t seem to have a clue.
Take American Airlines, recently saved from bankruptcy
by concessions from their unions. Hiding executive
bonuses until after the union vote only angered
workers. The same workers that keep the airplanes
up in the air. This is an industry where every time
a plane makes an unscheduled landing, it’s
in the news. This is also an industry that has lost
customers due to safety concerns, as well as other
factors. Confidence is important. This is just my
opinion as a consumer, but next time an American
flight attendant says, “Fasten your seat belts,”
I’d cinch it real tight. Originally Published in the Fort Worth Businss Press |
