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The Question of the Week: Who Owns Your intellectual Property?

April 5th, 2021 by

intellectual property lawBy: Steven Boyne

THE FRACTIONAL GENERAL COUNSEL

This question is a redundant question, if it is my intellectual property, then by definition – I own it.  True, but this question raises important issues that employers need to worry about – ownership of intellectual property.  The general rule is that if your employees create intellectual property while they are working for you, the employer will own it.  So, for example, if your office manager takes some pictures around the office and creates personal bios of your employees and puts that information on your website then you own that information.  However, what if they created that information at night while they were not at work and technically you were not paying them?  Well, now we are getting into a greyer area.  So, my recommendation is to avoid this issue, by updating your HR manual to state that you own the intellectual property, and not your employees.  read more

Is Your Medical Software Provider Using the Cloud to Store Data?

December 14th, 2020 by

The Fractional General Counsel

medical software security hipaa protectedBy: Steven Boyne

The Question of the Week: Is your Medical software provider using the Cloud to store data?

These days everyone is migrating to the Cloud.  This exodus away from servers to the cloud is driven by the flexibility, security and pricing that Cloud services such as AWS (Amazon Web Services), Microsoft’s Azure, Google Cloud and IBM offer software developers.  It is a pretty safe assumption that most healthcare software vendors are currently using the Cloud, or they plan on using the Cloud. read more

Florida and Federal Trademarking Differences

August 10th, 2020 by

trademark lawBy: Chase Howard

In a recent article, I touched on some of the reasons to consider trademark registration and what is required. Many people hear trademarks and might think only of the Federal registration through the United States Patent and Trademark Office (USPTO). Florida, however, also offers state level registration for marks that likely won’t qualify at the Federal level.

Trademark registration grants an intellectual property rights that help its owner protect a brand’s mark, logo, name or any other way that it conveys intangible property.

Trademark protection is available under both Federal and State law. Federal trademark protection allows the brand owner to protect their trademark in interstate commerce, while Florida registration allows trademark protection for marks only in the state of Florida. Florida law does share a lot of the same concepts and requirements of the Federal trademark requirements, however is limited only to protection in the State of Florida. Florida trademarks are less expensive and easier to obtain than Federal trademarks, but are superseded by a Federal trademark registration. read more

A Word is Worth Thousands: Protecting Your Healthcare Brand

July 22nd, 2020 by

trademark lawBy: Chase Howard

Investing in a healthcare related business involves significant time and money. Building a brand takes even more and is extremely important in today’s society. Having the ability to build a recognizable brand, scale, and potentially sell, is the goal of many healthcare business entrepreneurs. With the ever-booming impact of social media, online advertising, and online reviews, healthcare businesses seek to engage at a higher degree than ever before to attract new patients, retain current patients, and establish themselves as experts in their respective fields.

Building a brand is part of it, while protecting that brand is far more important. A well-recognized word or logo can be worth everything to your business. Obtaining ownership and protection over a name or mark is a fairly simply task with significant rewards. Trademarks are the names, slogans, tag lines, and/or logos that identify and represent your business, its services, and mission to the public, and are the foundation for the business’s overall branding and marketing. Trademarks can also be used to protect your business in a specific area or a specific area of expertise. If you do not protect your brand, a competitor could use it (or something similar, which could confuse the public and your patients and therefore potentially draw business away from your brand. read more

Managing Medical Device Anti Kickback Risks for Physicians

April 6th, 2017 by

By: Shobha Lizaso

Less than a year ago that medical device developer, Olympus Corp, agreed to pay a $646 million settlement to resolve claims of illegal kickbacks to physicians and hospitals. This is considered to be the largest settlement amount in the history of violations to the Anti-kickback Statute. The federal Anti-Kickback Statute (“Anti-Kickback Statute”) is a criminal statute that prohibits the exchange (or offer to exchange), of anything of value, in an effort to induce or reward the referral of federal health care program business.  Conviction for a single violation under the Anti-Kickback Statute may result in a fine of up to $25,000 and imprisonment for up to five (5) years.  In addition, a conviction will result in mandatory exclusion from participation in federal health care programs. The government may also assess civil money penalties, which could result in treble damages plus $50,000 for each violation of the Anti-Kickback Statute.

Between 2006 and 2011, Olympus offered consulting deals among many other bribes to influence physicians to order and prescribe Olympus medical devices. These consulting agreements provided for large up-front payments to physicians under the guise of medical device development. Olympus failed to focus on compliance and didn’t have policies and procedures in place to prevent illegal arrangements such as these. These physicians were retained as consultants, but most provided very little consulting services; they were utilized as device promoters. Physicians have a duty to order medical devices solely on the traditional standards of quality, price, and appropriateness for the medical conditions treated. Moreover, the ordering of medical devices by a physician must never be influenced by personal financial gain. read more

Protecting Your Medical Practice’s Brand: Trademark Basics

March 20th, 2017 by

By: Shobha Lizaso

Building a medical practice trademark brand image is extremely important in today’s technology-driven economy.  Because of social media, online advertising, and the availability of online reviews, local healthcare providers need to engage at a higher degree than ever before to attract new patients, retain current patients, and establish themselves as experts in their respective fields.

Patients choose providers based on specializations, reputation, and quality of care, so the first step in branding is selecting and registering the trademarks for your practice.  Trademarks are the names, slogans, tag lines, and/or logos that identify and represent your practice, its services, and mission to the public, and are the foundation for the facility’s overall branding and marketing strategy. In addition to the trademarks associated with your main practice, you may also use trademarks to protect your stake in a specific area or a specific area of expertise. For example, the trademark and logos used for a hospital’s senior services might be different than one used for its cardiac care services.  If you do not protect your trademark, a competitor could use it or something similar, which could confuse your patients and potentially draw business away from your practice..

Do you really need to register your trademarks?  Consider the following: read more

Healthcare Trade Secrets: How to Protect Your Practice’s Trade Secrets

November 8th, 2016 by

dreamstimemaximum_51887081-flipBy: Shobha Lizaso

“Prevention is better than cure” is a maxim that has reigned in the healthcare industry for thousands of years; however, this phrase echoes through the halls of the legal profession as well.

Healthcare practices often neglect to appreciate the value of their confidential information as assets and the need to protect these assets. Although HIPAA and HITECH compliance aids in maintaining the confidentiality of patient records, it does not protect a provider’s trade secrets.

Trade secrets of a healthcare practice may include any of the following: patient lists, financial information, contract rates, contract terms client lists, collection rates, marketing tactics, pricing/discount information, and methods of doing business. If leaked, this information may be used by competitors to secure advantages over a healthcare practice. For example, patient lists could be used to solicit a practice’s patients or contract rates and terms can be used by a competitor to undercut the rates of a practice. read more