Global telehealth, territorial patents: Opportunities and challenges for telehealth stakeholders

By James Hitchen, patent attorney, HGF

A single telehealth consultation may involve a patient’s phone in Manchester, a clinician’s terminal in Madrid, an inference model running on cloud infrastructure in Virginia, and a device manufacturer’s telemetry service in Bengaluru.

The technology is built to ignore borders. However, the patents protecting it cannot, as each of those four locations is governed by a different right, granted by a different office, and enforced in a different court.

Telehealth has moved from being a relatively niche component of healthcare delivery to an increasingly important feature of modern health systems.

The COVID-19 pandemic was a major catalyst for this transformation, with governments and healthcare providers rapidly expanding remote consultations and other digital health services to maintain access to care.

The subsequent development in the fields of cloud computing, connected medical devices, artificial intelligence and digital health platforms has further expanded the potential for healthcare services to be delivered across geographical boundaries.

This creates significant opportunities for technology companies developing telehealth platforms that can be deployed internationally.

It also creates a distinctive intellectual property challenge that the technology may be capable of operating across borders, while the patent rights protecting it remain determined by territory.

Why Distributed Delivery Is a Patent Problem

A patent gives its owner the right to stop others doing certain things inside a defined territory, and nothing more.

In broadly similar terms across the major systems, a patent lets its proprietor prevent third parties from making, using, offering, selling, importing, or stocking a patented product, and from using, or offering for use, a patented process.

Every one of those verbs is territorially anchored. This means that the act must take place in the country that granted the right.

The same is true of the rules on indirect or contributory infringement, which typically catch the supply, within the relevant territory, of means relating to an essential element of the invention for putting it into effect there, where the supplier knows, or ought to know, that the means are suitable and intended for that purpose.

Telemedicine patents, however, are frequently drafted as systems or methods with steps performed by different actors in different places.

For example, a typical patent claim may specify capturing data on a patient device, transmitting it, processing it on a server, applying a decision algorithm, returning a recommendation to a clinician, and logging the outcome.

When those steps are split across jurisdictions and across parties, e.g., a  patient, a clinician, a platform operator, a cloud provider, and an AI vendor, two recurring questions arise.

The first is the question of where the infringement occurs.

If the only element sitting outside the patent’s territory is a server, courts in the major jurisdictions have generally been willing to find that a service is nonetheless used where the users control it and derive its benefit.

Relocating a data centre is therefore a weak defence. However, the analysis is fact-sensitive and differs between countries, and therefore the same architecture can produce different answers depending on the jurisdiction and on the type of claim asserted.

The second question is determining who infringes.

Divided or “split” performance is the single most underestimated risk in this sector. Where no single actor performs every step of a claimed method, liability depends on doctrines of joint, contributory, or induced infringement that vary sharply between jurisdictions.

In the US, the question is usually whether the platform made the clinician’s step a condition of using the service, and then told the clinician how and when to do it.

A patentee will look first at the terms of service and the onboarding material for exactly that combination.

Instructions on their own are rarely enough, demonstrated by the fact that the Federal Circuit Courts in the US have repeatedly held that “mere guidance or instruction” does not amount to the direction or control required for divided infringement (see Travel Sentry, Inc. v. Tropp and Akamai Techs., Inc. v. Limelight Networks, Inc).

In the UK, the corresponding route is indirect infringement, where the question is whether the platform knew, or it was obvious, that users would intend to put the invention into effect here. Promotional and onboarding material may be powerful evidence, and even silence may not save a platform where the clinical workflow makes the infringing use predictable.

In India, by contrast, there is no statutory inducement or contributory-infringement provision and little direct authority on multi-actor method claims.

This lowers the near-term risk but leaves the outcome of such a claim harder to predict.

Four Key Telehealth Regions, in Brief

The United States remains the most expensive place to be on the wrong side of litigation.

Damages exposure is higher, discovery is intrusive, and a substantial share of litigation is brought by entities that do not operate in the market, including holders of portfolios covering remote monitoring, triage algorithms, e-prescribing, and video consultation workflows.

US practice also has well-developed rules on liability for supplying components abroad and for services controlled from within the country, both of which are directly relevant to a platform with US users and offshore engineering.

Europe might now be considered to be a two-track system, and this is the biggest recent change for cross-border risk.

Under the UPC framework, the Court has exclusive competence for actions for actual or threatened infringements of patents, declarations of non-infringement, provisional and protective measures and injunctions, and actions for revocation, while national courts remain competent for patent actions falling outside that exclusive competence.

Critically for exposure modelling, decisions of the Court cover, in the case of a European patent, the territory of those Contracting Member States for which the patent has effect (presently 18 EU member states as of August 2026, including major markets Germany, France and Italy, though notably not Poland or Spain).

A single UPC proceeding can therefore produce an injunction across most of the EU market at once.

For a subscription telemedicine service with pan-European users, that converts what used to be a country-by-country skirmish into a single market-wide hearing, and it does so on a timetable measured in months, not years.

The mirror image is also true, as revocation is available on the same multi-territory basis, so a weak patent asserted at the UPC may be lost everywhere at once.

The United Kingdom sits outside the UPC. It requires its own infringement analysis, its own litigation, and its own settlement line.

Its courts are sophisticated on questions of where a distributed service is “used” and are notably willing to grant declaratory relief and to determine the terms of licences with cross-border effect.

UK litigation is not cheap, but the trade-off in the sector is that a UK judgment is contained. In other words, it will not, by itself, close the European market.

India matters twice over, both as a very large and fast-growing telemedicine market, and as the location of much of the world’s health-tech engineering and clinical back-office capacity.

Enforcement timelines are longer and interim injunctions harder to obtain than in Europe or the US, which lowers the immediate litigation temperature.

Practice Points

So how should telehealth businesses ensure their IP position is in good health?

Some exemplary strategies are provided below.

Patent claims should be directed separately to the server, the client, the system and the computer program, and with at least one single-actor, single-territory method claim also included.

A client-side device or program claim gives you a product being supplied and used inside the target territory, which is far easier to prove than that a distributed method was performed there.

Furthermore, a prudent telehealth patent proprietor seek to license territory by where the service is actually delivered and consumed, not by where the licensee is incorporated.

A distributed platform performs claimed steps in every country it touches and therefore licences should be designed to account for this.

Similarly, to retain tight control over a licence, it is always beneficial to state expressly, for example, whether “Europe” means the EU, the EPC states, the UPC territories, or indeed something else.

To obtain a comprehensive understanding of the cross-border IP position, it can be helpful to produce a map of the service that records, for every step of the workflow, which party performs each step and in which country.

This is the single input upon which every subsequent question depends, because whether one party is answerable for another’s actions is treated everywhere as a question of fact rather than a matter of design intent.

A map built contemporaneously, and kept current, can ensure that no act or jurisdiction falls through the gaps of this analysis.

Additionally, as noted above, telehealth stakeholders should not treat server location as a design-around.

The English Court of Appeal held, in a case about an online gaming system whose host computer sat abroad while users operated terminals in the UK (Menashe Business Mercantile Ltd v William Hill Organization Ltd), that the foreign location of the host was no defence.

The user in the UK could be regarded as using the host computer in the UK, because where the host sat was irrelevant to how the invention actually functioned. Engineering effort may therefore be better spent genuinely removing a claimed function, or licensing it, than relocating it.

Finally, it is always worth bearing in mind that publications produced by a company in their own words are usually the claimant’s best evidence.

Onboarding flows, help-centre articles, clinical workflow prompts, integration guides, and sales decks all exist to persuade clinicians to use the service in a particular way. This can be supplied as persuasive evidence in litigation, particularly with reference to indirect infringement.

Under the UK law on indirect infringement, the question is whether the supplier knew, or it was obvious, that end users would intend to put the invention into effect, a test the Court of Appeal has said is likely to be met where the supplier proposes, recommends, or even merely indicates the possibility of that use in its promotional material.

Material written to sell a product is, in patent litigation, material proving the product was intended to be used in a certain way. It should be reviewed with that in mind both when auditing promotional material before release and also when trying to trap a potential infringer.

What this means for your IP strategy

None of this means that distributed health-tech architecture cannot be effectively patented and protected.

Instead, building an optimal strategy requires recognising that the same technologies that make telehealth globally scalable also determine where, and against whom, the patents can be enforced.

For telemedicine businesses, the principal IP challenge is no longer simply obtaining a patent. It is building a commercially workable global patent portfolio and freedom-to-operate position while navigating different patent systems, licensing arrangements and enforcement mechanisms.

The most effective approach is therefore to be proactive: map the technology stack, conduct jurisdiction-specific freedom-to-operate reviews, negotiate licences with territorial and downstream use in mind, protect genuinely valuable innovations, and prepare an enforcement strategy before commercial expansion.

For telemedicine platforms whose value depends on seamless cross-border operation, IP should be treated as an integral part of international market strategy rather than as a legal issue to address after launch.

The HGF MedTech and Digital Health team has extensive experience devising comprehensive international IP strategies to ensure telehealth innovators stand to achieve maximum commercial exploitation of their inventions.

Moreover, the team takes pride in delivering full-cycle counsel, from invention capture to enforcement, tailored to every business’s commercial objectives in the medtech and digital health space.

Find out more at hgf.com

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