INTELLECTUAL PROPERTY: FUELING THE HEALTH CARE REFORM ENGINE

11 Wake Forest J. Bus. & Intell. Prop. L. 147

Among its many notable accomplishments, the 111th United States Congress likely will be remembered most for its groundbreaking, albeit controversial, passage of comprehensive health care reform legislation in the form of the Patient Protection and Affordable Care Act (the “Affordable Care Act”). Signed into law on March 23, 2010, the Affordable Care Act aims to expand health care coverage for the nearly 50.7 million Americans who are currently without health insurance. While the Affordable Care Act may be viewed as the defining moment in the decades-long health care reform movement, significant health care reform in the United States was already underway more than a year earlier. On February 17, 2009, President Barack Obama signed into law the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”). Included within the Recovery Act are provisions known as the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), which appropriates billions of dollars in incentives for the adoption and implementation of electronic health record (“EHR”) technology.

This Article, which explores the ways in which the protections and motivations inherent in United States intellectual property laws, combined with the various incentives offered by the HITECH Act, serve (and will continue to serve) as a driving impetus for the development of an expanded market for HIT, (i) provides in Section I an overview of the legislative and regulatory history of the HITECH Act; (ii) discusses in Section II some of the fundamental principles for securing, maintaining, and protecting intellectual property rights in the United States; (iii) addresses in Section III the impact of the HITECH Act on the HIT market, including the role of intellectual property protections in the development of EHR products; and (iv) analyzes in Section IV several of the legal issues that health care providers face while implementing EHR systems, particularly those arising in negotiating an EHR software license agreement.