PCEHR, patent infringement and a bowl of gumbo
The Australian licensee for US company MMRGlobal, which is investigating whether the National E-Health Transition Authority (NEHTA) has infringed its patents by building the PCEHR, has rejected NEHTA's assertion that it had never heard from the company.
NEHTA CEO Peter Fleming told a Senate Estimates hearing in Canberra yesterday that the first NEHTA had heard about the patent infringement claim was on February 7, but that MMRGlobal had never contacted the organisation.
“We first heard about that on the seventh of February, where an article dated the fifth of February came to our attention,” Mr Fleming told the Senate committee.
“MMRGlobal has never contacted us at all. Since the seventh of February, we've obviously taken a look at the patents, both in an architectural and legal perspective, and have obviously briefed our lawyers to investigate. But certainly this company has not contacted us at all.”
However, MMRGlobal's licensee in Australia, Perth-based technology company VisiInc, claims it had been in contact with NEHTA several times and that NEHTA was aware of the existence of MMRGlobal.
“David emailed and sent letters to quite a number of people at the higher end of NEHTA,” Mr Blandin said. “We had discussions with NEHTA in November 2011. We conducted our own research through UMR Research, on the introduction of a personal health record, and there was an an article in The Australian and NEHTA rang us up and asked us if they could have a copy of our research.
“So, we've got it pretty well documented that we spoke with different people at NEHTA, and at various stages. I don't know if it was ever in writing, but we made them aware that we did hold patents in Australia.”
Mr Blandin said he was certain that Mr Utting had verbally informed NEHTA that it might be infringing the patents.
“We weren't going to get into a thing of saying we've got these patents and we are going to hold you to them; we basically wanted a hearing from them, which we never got,” he said. “You have to be careful how you approach some of these things and we never took a heavy-handed approach but in conversation they were made aware that we did hold patents in Australia.
“We are putting together quite a dossier at the moment and they can't say that they didn't know about it.”
Mr Fleming told the Senate committee that NEHTA had been through a “very detailed process” when conceptualising the PCEHR, which was released publicly for consultation through its Concept of Operations.
“We undertook a very detailed analysis through third parties around the world,” Mr Fleming said. “We have every confidence in our process, however we also accept legal processes and nuances and so we have briefed our lawyers and asked them to do further investigation.
“They are working with our architects at the moment, but as I said, the first we heard of this was on the seventh, late last week.”
Earlier this week, MMRGlobal filed a suit against WebMD, one of the most well-known US sites for healthcare information. This follows a suit filed in late January against Walgreens, the US pharmacy chain.
Both companies offer an online personal health record: Walgreens allows registered customers to access their prescription history online and signed a deal in 2009 to allow users to add their information to Microsoft's HealthVault. WebMD offers a free PHR along with its information services.
Both suits allege that the respective companies have infringed MMRGlobal's patents on inventions pertaining to personal health records, patient portals and other electronic health record systems.
MMRGlobal has hired LA law firm Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor (”Liner Law”) to pursue “efforts to monetize its patent portfolio and other IP by investigating potential infringement of MMR's patents by entities such as retail pharmacies, EHR and PHR vendors, laboratory systems, hospitals, physicians, and other healthcare professionals”.
Bob Lorsch, CEO of MMRGlobal and the inventor named on several PHR patents, including two filed in Australia, said he became aware of a potential infringement by NEHTA when one of his sales representatives, who was interested in selling in Australia, Googled MMR's parked domain name, www.mymedicalrecords.com.au, and was directed to an eHealth record site that appeared to be set up by Australian governments.
“He asked me if I was doing business with the Australian government, and I said not at this time,” Mr Lorsch said. “Then he pointed out that the website was pointing to the government site and that is when we started investigating. It now points to our corporate website.”
Asked if MMRGlobal was acting as a patent troll, Mr Lorsch rejected the accusation.
“This is a company in the business of creating products that reduce medical costs and save lives,” he said. “We have users and patents in the United States, Singapore, Israel, Japan, Mexico, Australia, New Zealand … as well as a strategic partnership in China ... we have a lot going on around the world.
“The difference between a patent troll and an inventor is the inventor is the person whose name appears on the patent. If you read the patents, my name is on them. I am the inventor. Patent trolls are people who buy patents that were invented by other companies and then go pound on people or try to collect.”
Mr Lorsch had a long career as a marketing and communications entrepreneur, working with many technology companies particularly at the Consumer Electronics Show.
In 1994, he set up SmarTalk TeleServices and invented a swipe activation mechanism for pre-paid calling cards that were sold through major merchandisers. Mr Lorsch said he sold that company to AT&T in 1999 for approximately half a billion dollars.
(A New York Times article states that AT&T bought the company for $192.5 million in 1999, after Mr Lorsch resigned as CEO.)
MMRGlobal first filed a patent in Australia in 2006, which was granted in 2008. “We filed our original patent in the United States in 2005, and through the Patent Cooperation Treaty expanded our patents globally,” he said.
“Even if I was not the inventor, MMR clearly was the company that it was invented for. Almost every aspect of that intellectual property is included and embedded in our product.
"If you take a look at potential damages, not only has somebody infringed on the intellectual property, but they are basically selling a product that competes with us – in the case of NEHTA they are giving away a product that competes with us – which affects our ability to compete in the marketplace.”
Mr Lorsch said his law firm was still investigating the potential infringement, and that he would “prefer not to get into details about litigation in the media at this time”, but referred Pulse+IT to the numerous press releases issued regarding the company's law suits and potential action.
“We've spent millions of dollars working through licensees and relationships relating to Australia, on this product, service, licence, patent, everything. But what is very relevant is that we would prefer to have a business relationship...”
He said MMRGlobal was attending the HIMSS conference in New Orleans early next month and hoped to meet with Australian government representatives to discuss the issue over Louisiana's most famous culinary export.
“We are all going to be in New Orleans,” he said, “so it would be a good time to break bread, eat gumbo and try to get this resolved.”
Posted in Australian eHealth