Entering the term “Femtech” in a search engine results in more than 3.2 million hits. Created in 2016 by Ida Tin, co-founder of the menstrual tracking app Clue, the term has meanwhile become established to describe products and services designed to improve or support women's health, wellbeing and quality of life. There are, for example, menstruation tracking apps, apps to make it easier to determine ovulation, apps for menopause management, and wearable fertility and menstrual cycle trackers.
In addition to areas such as menstruation, fertility, pregnancy, breastfeeding and menopause, Femtech also covers general healthcare. The availability of ‘women’s products’, particularly for menstruation and fertility, should not obscure the fact that medical treatments are predominantly designed to treat male patients, simply because most of the data in medical research comes from male subjects. This despite the fact that it is now common sense that women's health and health risk factors differ from those of men. Despite this, female health and in particular female diseases such as for example endometriosis, which according to the WHO affects around 190 million women worldwide and therefore represents an economic market that should not be neglected, do not seem to be a particular focus.
In fact, with a potential market the size of half the world's population, the development of medical treatment and applications tailored to women seems to make perfect sense and be lucrative. This leads directly to the question of how best to protect a respective product from competition. Patents with their 20-year term of protection for products and processes that are new, i.e., did not yet exist in this form and were not obvious from the state of the art, offer the inventor a temporary monopoly to amortize the development investment.
Of course, the granting of a patent is always a case-by-case decision. Nevertheless, the following should be considered when patenting products tailored to women:
- In the case of products and processes that have been specially developed for women, such as e.g. contraceptive rings or menstruation or menopause applications, there are no special additional patent law requirements.
- Biomarkers, i.e. biological material such as molecules, genes or other characteristics that can be used to identify pathological conditions or diseases as for example breast cancer, can also generally be patented if they are new and inventive. However, care should be taken to ensure that the patent claims are formulated in a meaningful way that encompasses products and processes beyond pure DNA.
- Companion diagnostics, i.e. in vitro tests to determine whether or not a drug is effective and safe for patients with an already diagnosed disease or predisposition, are also regularly patentable, provided they are new and inventive.
- If it is recognized later that an existing method or drug can be used to treat another indication in women, patent protection can also be obtained in this respect in the form of a so-called second medical use claim if the use of the method or drug for this indication is new and inventive.
From a patent law perspective, it is therefore definitely worth focusing on products and treatment methods that are specifically developed for women. This raises the hope that greater consideration and research will be given to the special requirements of the treatment of women, particularly with regard to women-specific characteristics in symptomatology, disease progression and corresponding risks.
