PHRs, ‘meaningful use’ and patent infringement (US)

MMRGlobal CEO Robert Lorsch’s interview by HIStalk today is a fascinating follow-up to our recent stories in several areas. First is the story of how he came to found MMRGlobal, and how this personal health record (PHR) stores both electronic ‘hard copy’ and user-entered health history data which is generally accessible. It is a little different than Microsoft Health Vault or the late and unlamented Google Health, with access based on a 10-digit telephone number ‘lifeline’ and a subscription model. MMRG claims 750,000 members to date. While MMRG’s legal track record has raised quite a few health tech industry eyebrows almost to the hairline, your Editor has to admit their actions are quite different from your usual non-operating ‘patent troll’ which preys on vulnerable early-stage companies [TA 10 Feb].  MMRG’s big legal actions are to hook ‘big tunas’–Walgreens, WebMD–plus ‘investigations’ of the Australian and Singapore Governments, based on its seven US and international patents building up in their portfolio since 2005. They have also announced similar scrutiny of Microsoft and AARP for their projected joint PHR. [TA 10 Feb, 20 Feb]

But…there’s more. Mr. Lorsch proceeds to draw the proverbial line in the sand for hospitals and practices which intend to achieve Stage 2 Meaningful Use (MU) compliant EHRs this year into 2014. Stage 2 MU has at least five core measures that depend upon patient access, one of which requires a patient-facing portal that permits viewing, downloading and transmitting their own health information.  (Useful bite-sized explanation by Dr. Rowley at HITECH Answers.) MMRGlobal is taking the stance that they believe that any of these portals which store information, or are full PHRs, infringe on their patent portfolio:

If somebody complies with that Stage 2 Meaningful Use, we believe that they will infringe on one of seven patents that we have issued in the US Patent Office an additional patents that we have issued in 12 additional countries around the world. What we have done is we’ve gone to the hospitals, providers, vendors, laboratories, and we’ve said, “Look, if you’re going to comply with Stage 2 Meaningful Use or you’re going to offer products and services that enable healthcare professionals to meet Stage 2 Meaningful Use, they’re probably going to infringe on one of our patents.”

We’re suggesting that they license those patents at very reasonable license fees, such that whatever they decide to do to comply with Stage 2, Stage 3 Meaningful Use, they have a license – a safe harbor — that they’re grandfathered in, where they never have to be concerned about infringement on any of our patents or other intellectual property. If those same hospitals say, “Are there any other ways to address this?” they could also use our products — our MyMedicalRecords products, our professional products — which are embedded with licenses for the technology.

The interview then proceeds to the money points: how hospitals, especially non-profits, and associations can ‘reasonably’ (again) pay to MMRG (or negotiate on behalf of members) those licensing fees, or simply buy the MMRG PHR.

Which leaves this Editor with a question: these systems are supplied by major companies: Cerner, Epic, McKesson, GE. The hospitals and large practices are only system users, albeit with considerable user HIT customization. If the PHR is part of the Epic, Cerner (etc.) system, and the hospital buys the system, isn’t the true source of the patent infringement the supplier, not the end user? Or is this MMRGlobal’s strategy to avoid being a snack for some very large and aggressive sharks? It remains….fascinating. HIStalk Interviews Robert Lorsch, CEO, MMRGlobal  Hat tip to reader Vince Kuraitis via Twitter.  Also to be noted are the on-fire comments under the article which clarify many of the US patent issues, and possible defense strategies which hospitals and associations/groups may follow.

Update 28 Feb: The latest MMRGlobal pre-HIMSS press release announces ‘going mobile’ with their own wellness app, built with MyVitaLink (note that website indicates a restructuring) that ties into their PHR, and their collaboration with Alcatel-Lucent. Second graph puts mobile companies on infringement notice.

 

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