A
young man interested in computers decides to forgo college
and start his own company. With almost nothing to lose,
he takes risks that ultimately pay off; his company
gets bigger and bigger every year. Sound familiar? Maybe,
but this story's not about somebody named Gates or Dell,
and in fact begins in Germany.
Stephan
Vilsmeier started tinkering with computer programming
when he was in high school in the 1980's. He decided
to share what he had learned and wrote a book about
it. Supposedly, the book sold 50,000 copies, which is
pretty remarkable considering the dry nature of the
subject. There are lots of authors who would die for
those kind of sales.
Next,
Vilsmeier worked on programs for imaging so that brain
surgeons could have better information on their patients.
That experience led him to the realization that software
could have a huge impact in the medical field. So he
skipped college, or “university” as they say in Europe,
and started Brainlab. While in his early twenties, Vilsmeier
built some equipment, came to America to show it and
made his first sale. After a gutsy start in the early
1990's, the company now has revenues of about 100 million
euros. Not bad for a high school grad.
Brainlab
and its competitors make money by wringing more and
more useful information about patients. In medicine,
targeting the treatment, especially invasive treatment,
is becoming the norm. Think of laser surgery for eyes,
where a finely tuned laser beam sculpts the lens. As
another example, think of radiation therapy, where a
beam of radiation is pointed at a malignant tumor to
shrink it.
Nomos,
a Pennsylvania company, has been working to improve
radiation therapy. It has narrowed the focus and modulated
the intensity of the radiation beam in order to better
target the beam at the tumor and away from healthy tissue.
Somewhere along the line, Nomos learned that as the
tumor became irradiated, it not only shrank, but also
moved inside the patient. Nomos figured that if the
doctor could take a picture, or image, of the tumor
before each treatment, then the tumor could be located
with precision and the beam more finely targeted. It
got a patent back in 1995 on the idea.
The
Nomos patent uses an ultrasound probe to image the tumor.
The trick is to know the position of the ultrasound
probe, from which the position of the tumor can be figured.
Imaging
is right up Brainlab's alley. It so happens to sell
a system called ExacTrac. The ExacTrac uses an ultrasonic
probe to image the tumor before radiation treatment.
The ExacTrac was too close; Brainlab got sued for patent
infringement.
Brainlab's
defense was in keeping with the risk-taking ideology
of its young founder. It argued that the patent required
the ultrasound probe to be fixed to the patient table.
Brainlab's probe wasn't fixed, it was handheld by the
attendant.
Patents
have two general parts. The first part describes what
the invention is, as well as how to make it and use
it. The last part, known as the claims, gives the legal
definition of the invention. When a company infringes
a patent, it is copying the claims of the patent.
Nomos's
patent never mentioned that the probe was “fixed” in
the claims. Nomos' description though was a different
story; in teaching all about the invention it kept mentioning
the probe as being “fixed”. Nomos' patent figured out
the position of the probe by using either an emitter
and receiver. In one version, the probe had two lights
which were sensed by cameras. In another version, the
probe had ultrasonic emitters and a microphones to triangulate
the probe.
Brainlab's
positioning system uses infrared emitters and receivers.
Brainlab's positioning system is probably more sophisticated
that what was envisioned in Nomos' patent in the early
1990's; as a more sensitive system, it doesn't need
the ultrasonic probe anchored to the table. It can pick
up the probe location even if held by an unsteady hand.
The
court bought Brainlab's argument and found no infringement.
It's a puzzling decision. The typical way to design
around a patent is to make a change that takes your
product away from the invention. Patents are designed
to be somewhat open-ended. This means that if someone
improves on the invention, there is still infringement.
Brainlab adopted Nomos' invention, improved on it in
a minor way and still escaped infringement. That kind
of redesign is typically unsuccessful in avoiding a
patent.
Microsoft,
another software company, has been accused of relying
on others and doing little innovation on its own. Brainlab
is no Microsoft, but in this case, another of Vilsmeier's
bets paid off.
Originally
Published in the Fort Worth Businss Press
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