Intellectual Property in FemTech: Protecting Innovation in Women’s Health

Historically, women’s health has received less attention and funding in medical research and health related technological development. It is widely recognised that not enough focus has been placed on women-specific issues such as menstrual health, fertility, pregnancy loss and menopause, amongst many others.

However, FemTech is a new and developing sector of the tech industry focusing on digital health products and services specifically designed to address women’s health and wellness, including both female-specific health issues as well as health conditions which may affect women differently or disproportionately to men.

Recent press has estimated that there are as many as 770 FemTech companies operating in the UK. As for any businesses which grow rapidly, these companies need to ensure that their intellectual property protection keeps pace, so that their proprietary rights are adequately protected as they grow.

 

Patents – what FemTech companies need to know about protecting innovation

Protecting innovation via the patent system is of great importance for any tech-based industry. The exclusive rights afforded by patents are important for driving innovation and incentivising investment in research and development. So it is no wonder that the rise of innovation in FemTech and women’s health has been matched by an increase in patent filings in this space, for a whole range of inventions from surgical instruments and diagnostic tools, to consumer products and wearables. 

In the UK, patentability is governed by the Patents Act 1977. To be granted a patent, the technology must satisfy requirements regarding novelty, inventive step, industrial applicability, and sufficiency. The novelty requirement means that the invention is new and has not previously been made available to the public anywhere in the world. Inventive step requires that the invention would not have been obvious to a person skilled in the relevant field having regard to prior art. An invention is capable of industrial application if it can be made or used in any kind of industry. And sufficiency means that the invention is disclosed clearly and completely enough to be performed by the skilled person.

The Patents Act 1977 also includes several exclusions from patentability, such as certain computer programs and methods of treatment or diagnosis, which may be very relevant to FemTech.

Patenting AI-based FemTech

Many advances in FemTech are taking advantage of rapidly advancing AI systems to power new technology. Exclusions from patentability particularly salient to FemTech which utilises AI include computer programs and mathematical methods “as such”. AI by its nature is based on computational models and mathematical algorithms, so these exclusions have raised tricky questions as to whether it is possible to patent AI-related technology.

The UK courts recently addressed the issue of patentability of AI systems in the case of Emotional Perception AI Limited v Comptroller General of Patents.  This has been the most significant test yet of how UK law treats the patentability of AI, and the Supreme Court recently delivered the final word on some key issues (Emotional Perception AI Ltd v Comptroller-General of Patents [2026] UKSC 3).  

Previously, it was necessary to demonstrate that there was a “technical effect” to take the invention beyond a computer program “as such” and, in practice, this involved considering the problem to be solved, how the invention works, what the advantages are, and what the inventor has added to human knowledge.¹ The Supreme Court has overturned this approach, instead adopting an approach in line with that used by the European Patent Office. This “any hardware” approach assumes that the relevant technical means are present because computer hardware is needed to implement the artificial neural network at the heart of the AI, so the artificial neural network is not a program for a computer “as such”.  

The result of the Supreme Court judgment is that AI inventions will now be considered in line with the usual requirements for patentability of any invention (they must be new, inventive and capable of industrial application), subject to a new “intermediate step” prior to that analysis. In this intermediate step, features of the invention which do not contribute to, or interact with, the technical character of the invention viewed as a whole are filtered out from the assessment of patentability, so they do not play a part in consideration of inventive step.

This provides a clearer, and possibly easier, path to securing patents on AI-related inventions, which may aid those seeking patent protection in relation to AI-driven FemTech innovations.

Patenting methods of treatment or diagnosis

Another statutory exclusion in the Patents Act 1977 that may be relevant to FemTech inventions is that covering methods of treatment of a human or animal by surgery or therapy, and methods of diagnosis practised on a human or animal body. Guidance from the UK Intellectual Property Office specifies that a diagnostic claim is excluded if it, in substance, comprises examination and collection of data, comparison of that data with normal values, recording any deviation, and attributing the deviation to a particular clinical picture.²

The policy behind this exclusion from patentability is to preserve the clinical freedom of doctors and healthcare professionals, to avoid monopolisation of essential medical procedures, and to ensure that patents cover technical inventions and not professional skills.

To escape the exclusion, the patent should focus on claiming a medical device or diagnostic equipment, instead of clinical methods.  Further, in vitro diagnostic methods (ie those performed outside of the body) are not excluded from patentability as they do not involve performing steps on the body itself, and they are considered industrial/technical laboratory methods, not medical acts. Inventions consisting of a substance or composition for use in a method of treatment or diagnosis can also be patented.

The relevance of industrial application

Another requirement for patentability is that the invention must be capable of “industrial application”.  This means that the invention can be made or used in any kind of industry. “Industry” is interpreted very broadly, covering any practical or technical activity – it includes, for example, manufacturing, services, agriculture, healthcare, and diagnostics.  The policy behind this is that patent rights should not intrude into activities which are inherently private and the patent system should not enable monopolisation of non-technical personal behaviour.

The requirement for industrial applicability is usually easy to satisfy. However, that is not always the case in relation to FemTech inventions where the innovation may cover something that operates solely in the private or personal sphere, with no conceivable industrial use.

Patents that are particularly vulnerable are those that claim some form of “use by the user”. For example, a patent application was rejected by the Board of Appeal at the European Patent Office³ (EPO) where the claims were directed to applying a contraceptive composition directly to the cervix by the woman herself. The EPO considered that this use occurred in the private and personal sphere, and there was no industry or professional context in which the invention could be implemented.

It is important to note that not all contraception-related inventions fail on these grounds. The EPO has confirmed in other cases that oral contraceptive uses can be industrial, because they may be part of medical practice or pharmaceutical manufacture and distribution, and/or related methods may be framed as industrial if a paid service is conceivable.

Similar issues with industrial application may arise in other areas of FemTech, such as lifestyle and wellness techniques which are based on user-only methods, and personal data-tracking methods where the patent seeks to cover personal behaviours rather than technical processes. 

 

Trade Marks – What FemTech brands need to know about distinctiveness, descriptiveness and infringement risk

Distinctiveness and descriptiveness are two core principles at the heart of trade mark law in the UK and are issues which are cropping up in the FemTech industry increasingly often.

Trade marks cannot be registered if the mark is devoid of any distinctive character (distinctiveness test), or the mark is indicative of the characteristics of the goods or services with which it is associated (descriptiveness test). In general, common, laudatory words (such as “Best” or “Super”) are devoid of distinctive character. This is because trade marks must serve to identify and distinguish the product as originating from a particular business.  A common laudatory word will not help a consumer understand which business the relevant product came from. Similarly, any mark which is descriptive of the relevant goods or services, or descriptive of the nature of those goods or services, will also not be registered. The only exception to this is where a long and/or intensive period of use of the brand has resulted in it acquiring distinctiveness in the eyes of consumers.  Without this acquired distinctiveness, it would be against public policy to allow businesses to register commonly used laudatory words or words describing a product as trade marks and so exclude others from using that word.

These concepts can clash with brand owners’ needs and wants to promote their brand in a way which easily indicates to their consumers what the brand or product does. This may especially be the case in the FemTech arena, where products may be particularly novel. However brand owners should be wary of any laudatory or descriptive names if they want their brand or product names to be registrable.

Equally, it is vital for brand owners to undertake adequate clearance searches before settling on a brand or product name, and to note that adopting a prefix which the brand owner may consider to be common or descriptive and so think is “free to use” may in fact cause it to infringe third party rights. For example, in a UK 2023 trade mark judgment concerning the marks “VAGISIL” and “VAGISAN” for female intimate healthcare products, the English Court of Appeal noted that whilst other prefixes are often used to signpost consumers to what a product is used for (eg derm-, dent-, pedi-), there was no evidence that (at the time the brand was first used in 2013) the terms “VAGI” or “VAGIS” were commonly perceived by consumers in this way. In any event, the Court noted that the real question was not whether “VAGI” or “VAGIS” was descriptive, but whether the whole mark “VAGISAN” was descriptive, and the Court concluded that it was not, as it was an invented word with no pre-existing meaning. By the relevant date, the prior mark VAGISIL had widespread use in the UK, and consumers would have had a high degree of brand awareness, meaning consumers would have been confused as to origin between the two marks, owing to the overall similarity between the marks, and the later VAGISAN mark was found to be infringing.

 

UNICEF’s FemTech initiative

Last year, UNICEF launched a five-year investment programme supporting innovation in FemTech, including in sexual, reproductive and maternal health, and menstrual health and hygiene.⁴

The programme aims to provide a catalyst for FemTech innovation for women and girls, particularly in emerging markets. The initiative offers equity-free capital for early-stage, FemTech startups leveraging frontier technologies such as AI and data science, as well as access to UNICEF’s technical experts and programme partners. In return, solutions have to be licensed on an open-source basis. FemTech solutions which have been supported by this initiative include HannaHealth,⁵ an open-source AI-powered women’s health assistant.

 

Key takeaways

As development of FemTech continues to accelerate, strong and strategic intellectual property protection is essential to ensure that innovation in women’s health can thrive. Patents and trade marks each play a critical role, protecting proprietary technologies and safeguarding distinctive brand identities.

With the growing integration of AI and the evolving legal landscape surrounding computer‑based inventions, as well as the existence of a number of potentially relevant exclusions from patentability, FemTech companies have to navigate a complex IP environment. By proactively managing their IP portfolios and understanding the limits of patentable subject matter, FemTech innovators can better protect their breakthroughs, attract investment, and build trusted, scalable solutions that meaningfully advance women’s health worldwide. 

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¹ Manual of Patent Practice §§ 1.18-1.24.
² Examination Guidelines for Patent Applications relating to Medical Inventions in the UK Intellectual Property Office, paragraph 57
³ T74/93
⁴ Equity-Free Funding Opportunity for Fem Tech Solutions | UNICEF Office of Innovation
⁵ HannaHealth