Patenting Digital Mental Health

• Published date: 16 June 2022
• Subject Matter: Intellectual Property, Food, Drugs, Healthcare, Life Sciences, Patent
• Law Firm: HGF Ltd
• Author: Ms Cassie Smith

Mental health and behavioural disorders have a profound impact on wellbeing worldwide, with an estimated 13% of the global population suffering from a mental health or substance use disorder ¹.

Monitoring and managing mental health conditions poses a unique set of problems for clinicians, researchers, and patients. Many mental health disorders are chronic and relapsing, and thus there is a need to provide long term follow up and assessment in order to improve patient outlook and determine a correct intervention. Reliance on self-reporting to detect a relapse or monitor progress can be unreliable due to recall bias and deliberate misreporting of symptoms. The ubiquitous nature of mobile and wearable technology provides a profound opportunity for large-scale collection of passive behavioural data. This has caused a huge increase in interest in building so-called digital mental health products² by making use of sensors, big data, and computational techniques such as machine learning for detecting or predicting a mental state or determining an intervention³.

Obtaining patent protection for an invention related to such digital mental health technology may be considered difficult, due to its location at the intersection of computer software, mathematical methods, mental acts, diagnosis, and therapy.

Non-patentable subject matter

Predictive algorithms, including artificial intelligence and machine learning models, are considered to be mathematical methods under European practice⁴ and are thus excluded from protection under European law when claimed as such (Article 52(2), 52(3) EPC). In practice, if a claim is directed to the use of technical means such as a computer to perform the method, the subject-matter as a whole is not excluded. The claim is then considered a "mixed-type claim" consisting of both technical and non-technical features. Non-technical features such as a mathematical method can contribute to the inventive step of the invention if they contribute to producing a technical effect. A mathematical method, such as a machine learning algorithm, can contribute to producing a technical effect by serving a technical purpose (T 1227/05) or by being adapted to a specific technical implementation (T 2330/13).

Mental health inference - a technical purpose?

The definition of a technical purpose can be inferred from existing case law and examples provided by the EPO. The relative youth of digital mental health technology means there is limited case law...