Court: McKesson can sue Epic for patent infringement

Electronic health record vendor McKesson may proceed with a patent infringement lawsuit against Epic, even though the latter company did not perform all of the steps that may have caused an infringement, according to a recent ruling by the U.S. Court of Appeals for the Federal Circuit.

McKesson had sued Epic for patent violation of its "MyChart" program, which allows for electronic communication between patients and providers. McKesson alleged that Epic induced customers to infringe the patent. The District court had ruled for Epic, saying that there could be no infringement because patients--and not Epic's direct customers--performed some of the steps that cause the alleged infringement when they initiated communication with their providers.

However, the appellate court--in a 103-page opinion-- reversed the lower court's decision, saying that while all of the steps of a claimed method must be performed to find induced infringement, it was not necessary to prove that all of the steps were committed by a single entity.

"We are persuaded that Congress did not intend to create a regime in which parties could knowingly sidestep infringement liability simply by arranging to divide the steps of a method claim between them," the court noted.

The opinion does not decide the case itself; the appellate court has remanded it back to the district court for further action consistent with its opinion.

The opinion also remanded a similar patent infringement lawsuit, Akamai v. Limelight, for further disposition.  

As the EHR industry matures, it is likely that more disputes will end up in litigation and decided by the courts, not unlike many patent lawsuits now occurring in the pharmaceutical industry. The Supreme Court has already weighed in on one patent infringement case involving EHRs earlier this year, ruling that a diagnostic testing company could not patent and exclusively control the use of a method in an EHR's clinical decision support to determine the dosages of a class of drugs.

To learn more:
- here's the court opinion on McKesson
- read this brief
- check out this Techdirt blog post

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