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A 510(k) plan is only as sound as the predicate it rests on. When the predicate turns out to be one FDA won't accept, the consequences reach beyond the regulatory team: a longer timeline, new testing or clinical data, possibly a De Novo request, and a financing plan built around the wrong date.

We call it the "Predicate Trap," and it is worth checking directly in diligence.

What Is the Predicate Trap?

The 510(k) pathway requires showing that a device is substantially equivalent to a legally marketed predicate: the same intended use, and the same technological characteristics or different ones that don't raise different questions of safety and effectiveness. In practice, predicate selection takes judgment, and a poor choice can undo a regulatory strategy.

The Predicate Trap occurs when a company:

How It Plays Out

An Illustrative Case

A surgical device company raises a Series A on a 510(k) timeline. Its predicate has a similar intended use but significantly different technology.

During review, FDA sends a request for additional information questioning the predicate, and the company has to choose between finding a better predicate and submitting a De Novo request.

Either way the timeline and budget grow, and the company may have to raise money on worse terms than it planned. This case is a composite, not a specific company.

Red Flags We Look For

Predicate Standing: A device removed from the market at FDA's initiative, or found adulterated or misbranded by a court, can't serve as a predicate. FDA's September 2023 draft best-practices guidance adds that a predicate should have been cleared using well-established methods, meet or exceed expected safety and performance, and be without unmitigated use-related or design-related safety issues or a design-related recall.
Technological Mismatch: If a device uses fundamentally different technology from its predicate (for example, AI-based analysis compared with a rule-based algorithm), the company has to show the differences don't raise different questions of safety and effectiveness. That argument can be hard to make.
Intended Use: A new device must have the same intended use as its predicate. Some differences in indications for use are acceptable if they don't amount to a new intended use; a plan to market for uses the predicate doesn't share is a sign the 510(k) may not fit.
Predicate Safety History: Recalls, adverse event reports and enforcement history involving the predicate are worth reviewing, since FDA's draft guidance points away from predicates with design-related recalls or unmitigated safety issues.

How to Test for the Trap

1. Map the Predicate Landscape

Look beyond a single predicate: identify the potentially relevant ones, check their clearance histories and recall records, and understand why each would or wouldn't hold up.

2. Look for FDA Feedback

A Pre-Submission lets a company test its predicate choice with FDA before committing to it. There is no FDA user fee for it.

3. Check for a Fallback

Is there a backup predicate, and has the company thought through a De Novo request if FDA disagrees? A strategy that depends entirely on one predicate is exposed.

4. Read the Regulatory Plan Independently

For investors, a read of the predicate strategy by someone outside the company's own consultants is a useful check on assumptions no one inside has had reason to question.

The Bottom Line

Predicate strategy isn't a checkbox; it shapes the whole development program. A diligence read that examines the predicate directly, rather than accepting the company's characterization, is where the trap is easiest to spot.

References

  1. FDA. "Best Practices for Selecting a Predicate Device to Support a Premarket Notification [510(k)] Submission." Draft guidance, September 2023. fda.gov
  2. FDA. "How to Find and Effectively Use Predicate Devices." fda.gov
  3. FDA. "The 510(k) Program: Evaluating Substantial Equivalence in Premarket Notifications [510(k)]." Final guidance, July 2014. fda.gov
  4. Covington & Burling LLP. "FDA Proposes Significant Shift to 510(k) Process in Draft Guidance on 'Best Practices' for 510(k) Predicate Selection." September 11, 2023. cov.com
  5. Emergo by UL. "U.S. FDA Medical Device Predicate Selection for 510(k) Submissions." White paper by Stuart R. Goldman, November 2024. emergobyul.com
  6. Johner Institute. "Predicate device & substantial equivalence." October 24, 2023. johner-institute.com