Don't let the patent trolls win

Discussions about patents can be pretty arcane and may not cause much of a stir, but a court decision last month against a patent troll may mark a turning point in health IT.

A federal court in Texas has dismissed a patent claim against four of the biggest electronic health record vendors on the grounds that the patent at issue was too abstract to be patentable. The lawsuit had been brought by Preservation Wellness Technologies against Allscripts Healthcare Solutions, Epic Systems, athenahealth and NextGen Healthcare Information Systems.

Preservation is the owner of a patent known as patent 271, called "system for maintaining patent medical records for participating patients." The system provides secure management of medical records, remote access to patient records by patients and providers by use of a network, software, a two-way firewall, differential access and more. Preservation said the vendors had infringed on its patent.

The vendors asked the court to dismiss the claims on the basis that the patent wasn't eligible because it was based on an abstract idea of maintaining a system of patient records, and did not contain an inventive concept because the computing functionalities recited in the claims are "conventional" and "generic."  

The court agreed, and threw out the lawsuit. Even better, the judge threw it out quickly, based just on the pleadings filed. Had the case been drawn out longer, which is what Preservation requested, it would have increased the chances that the vendors would settle rather than spend more money in their defense.     

Patent trolls are patent holding companies whose sole purpose is to own and enforce intellectual property rights without actually practicing the invention.

The court was careful not to call Preservation a patent troll. But the law firm that reported the case--and represented Epic--had no qualms doing so.

This is hardly the only patent troll lawsuit against EHR and health IT vendors. MyMedicalRecords is well known for instituting claims against vendors for patent infringement, and has in the past been able to get vendors to settle out rather than participate in a protracted legal battle. However, MyMedicalRecords didn't fare too well in its most recent suit, losing against Walgreens and others because the court in that case also found that the concept of access and management of patient medical records is an abstract idea.

Now we also have the Preservation decision. We may just be seeing the start of a trend.

There's a lot of legal wrangling in the EHR/health IT market, and certainly many lawsuits have merit--after all, there's a lot a money at stake. But these are nuisance cases, not necessarily real, big stakes lawsuits involving active systems and real harm to victims who have been harmed by another.

And while often, people like to see Goliaths slain by Davids, a patent troll is not the "little guy." It's more like the third-party interloper, in it just to make a few bucks from a vendor who may not want to bother duking it out in court.

It's a shame that vendors must waste resources on these cases. But they're still lawsuits that must be taken seriously.

It's heartening, though, to see the vendors beginning to fight patent trolls. The more the vendors defend themselves and mount up wins, the less likely that the trolls will continue this line of attack. And hopefully, that will enable the vendors to spend more time and money on making EHRs more usable, interoperable and safe.

Moreover, if vendors continue to fight and win against patent trolls, maybe we can shed more light on the real problem: that non-patentable ideas are being awarded patents. What is going on in the U.S. Patent Office? Does the review process need updating? Should applications receive more scrutiny? And why are patent trolls allowed?

If these unwarranted patent applications had been properly denied to begin with, this sordid aspect to EHRs and health IT (and other industries) would be greatly reduced, if not eliminated. Then, people could concentrate on issues that really matter. - Marla (@MarlaHirsch and @FierceHealthIT)