Healthcare Technology Featured Article

November 12, 2013

MMRGlobal's Lawsuits Highlight Problems with Today's Software Patents


In 2009, the HITECH Act created an incentive program for healthcare providers that implemented electronic health records (EHR). However, providers couldn't just purchase some EHR software and then collect incentive payments. They had to show that they were putting their EHRs to "meaningful use."

In other words, providers had to not only have EHR programs but also demonstrate that they had real-world significance. One core objective of Meaningful Use involves giving patients an electronic copy of their health information.

To meet Stage 2 Meaningful Use requirements, practices have to be able to give 50 percent of their patients access to an online copy of their health information within four business days. This requirement has given MMRGlobal an opening to market personal health records (PHR).

Patients aren't always allowed to access to their EHRs, but they can work with their doctors to maintain their own online PHR. When a patients signs up for MyMedicalRecords.com, MMRGlobal's flagship PHR product, the patient receives a unique telephone number that can be used to receive both faxes and voice messages.

At the patient's request, doctors can fax records to that unique number, and those records will populate within the patient's MyMedicalRecords.com account. However, MyMedicalRecords.com is a standalone PHR. It's completely patient-controlled and not tethered to a particular provider. The patient has to request that records be faxed into the MyMedicalRecords PHR.

Another company, Allscripts, offers the FollowMyHealth.com PHR. FollowMyHealth.com is a tethered PHR, meaning that it does connect directly to a provider. In addition to receiving faxed records, providers can download records directly into the patient's PHR.

MMRGlobal has filed several patent infringement claims against Allscripts, arguing that FollowMyHealth.com has inappropriately used MMRGlobal's PHR patented technology.

MMRGlobal is pursuing the right business strategy by attempting to defend its patents. The problem isn't MMRGlobal's attempts to defend its intellectual property; the problem is the software patent system itself. According to a recent report from the Government Accountability Office (GAO), many software patents are written with unclear property rights or overly broad claims.

The GAO report also stated, "Claims in software patents sometimes define the scope of the invention by encompassing an entire function—like sending an e-mail—rather than the specific means of performing that function."

As MMRGlobal's blog explains the company's consumer patents, "These products allow documents, images and voicemail messages to be transmitted in and out of the system using a variety of methods, including fax, voice, file upload, email and other forms of messaging and do not rely on any specific Electronic Medical Record (EMR) system to populate an account."

In other words, MMRGlobal says that it invented the PHR concept, which is a broad claim. The courts will decide whether other companies have the right to compete by making improvements or changes to the basic PHR concept, which FollowMyHealth.com has arguably done by creating a tethered product.




Edited by Ryan Sartor





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