This is the first of an occasional series on US law and intellectual property (IP) as it affects software and systems used in health technology. This article discusses the software developer’s rights to source code, licensing by the end user and the best ways both parties can protect themselves long-term in their transactions via software escrow.

Mark Grossman, JD, has nearly 30 years of experience in business law and began focusing his practice on technology over 20 years ago. He is an attorney with Tannenbaum Helpern Syracuse & Hirschtritt in New York City and has for ten years been listed in Best Lawyers in America. Mr. Grossman has been Special Counsel for the X-Prize Foundation and SME (subject matter expert) for Florida’s Internet Task Force. More information on Mr. Grossman here.

Source Code Escrow

It’s a nightmarish scenario. Let’s say that you’re the head of Information Technology (IT) for a hospital or a group of long-term care facilities. You pay a software development company $500,000 to create new software for your telehealth monitoring and alert system. It doesn’t matter whether the software runs locally on your servers, or in the cloud in a SaaS model. But then your developer goes bankrupt or for whatever reason and refuses to support the software. If you didn’t consider access to the source code in your agreement with the developer, you may find that you’re unemployed.

Essentially, “source code” is computer programming that humans can read. “Object code” is programming that only your computer can read. Typically, as a user, you only have access to the object code.

Software developers consider the source code to be their most valuable trade secret. With the source code, a competitor could create a competing work without incurring all of the development costs of the original developer. Source code is the lifeblood of the software development business.

From your perspective as the head of IT for that hospital or facility, you need the source code to continue the evolutionary development of your software or to fix bugs if your original developer disappears on you. If they can’t or won’t help, you’ll need to (more…)

Editor Steve grieves for the days when telehealth in the UK had a bright future…

There is a deep irony in the latest move by the UK’s Department of Health (DH) to encourage general practitioners to adopt telehealth (remote care).

Perhaps it is because the health ministers and/or civil servants have realised that the Whole System Demonstrator (WSD) programme results have gone down like the proverbial lead balloon that they have turned to the thing which has ‘traditionally’ motivated GPs to change – money. But, as the GPs see it, the scheme they have come up with (more…)

Roy Lilley, the UK media’s highest-profile commentator on the NHS, telehealth supporter and previously chair (twice) of the TSA conference, writes a several-times-a-week newsletter commenting on events and developments in the UK that affect the NHS. It is required reading for anyone, including private sector suppliers, who need to understand what is happening in the NHS. (Sign up here) His newsletter article today, although not about telehealth, touched a particular nerve because the ‘i’ word he excoriates in the NHS context is frequently bandied about in the telehealth context. The article is reproduced here, with permission, and our thanks.

It’s annoying. Everywhere I turn it’s there; inappropriate, the wrong context and unsuitable. It’s stuck to my shoe. I can’t scrape it off. Over the last two weeks wherever I’ve been, PowerPoint presentation after PowerPoint presentation misused it and misrepresented its intent… (more…)

Editor Steve Hards frets about a dilemma for telehealth and telecare service purchasers.

Imagine that you are ‘a commissioner’ in a position to influence plans for local NHS or council spending, or you could be in a position of influence within an NHS trust, or a council.

You are acutely aware of past, current and impending funding pressures. Positive messages about telehealth and telecare technologies and their potential to facilitate changes in the way services are provided – and possibly to ease some of those funding pressures – have somehow penetrated your noisy environment.

You are reasonably convinced that services locally should ‘do something’ about it. You start convincing others. You build enough momentum to get to the point of someone drawing up a commissioning specification.

What do you put in it? (more…)

Regular Telecare Aware readers will know our long-standing general concern about the market-distorting effect of the UK Government’s Telecare, Telehealth and Telecoaching Framework Agreement for procuring such services. John Guyatt, Director of Solutions4Health spells out what that means from the perspective of a relatively new company in the field.

I was recently preparing a bid for a telehealth service being commissioned in the next few months, when I realised that the exercise only allowed bids from companies already in the Government’s framework agreement.

We’ve been active with products in the telehealth business for the past 18 months, but we are excluded because we weren’t providing telehealth solutions when this framework agreement was first introduced about three years ago.

That’s several generations in the technology world and therefore raises a number of issues… (more…)

In this Soapbox, Peter Kruger, Managing Director of Steinkrug, looks backwards at the pressures that have shaped the NHS and forwards to a different kind of future for caring.

Twenty years ago the NHS underwent something of a revolution: one that went far beyond anything the former health secretary Andrew Lansley envisaged. Technology played a key role in what was perhaps one of the largest business re-engineering projects ever undertaken. The impact of this change is still being felt; not only by patients but also by their relatives who find themselves playing the role of carers. This is opening up opportunities for a number of organisations ranging from mobile health vendors to high street pharmacies.

The following 4 minute video clip shows how most people perceived the NHS before the 1990s – complete with some old fashioned social attitudes:

Only When I Laugh 1982. Watch the complete episode on YouTube

However, twenty years ago a wave of ageing baby boomers (the ones born during the 1920s, not those born in 1946) hit NHS hospital wards… (more…)

<em>Keith Nurcombe, Telefonica’s global director of healthcare, and managing director of O2 Health UK, makes a rallying call to all telehealth supporters.</em>

Telehealth significantly reduces mortality rates, emergency admissions, A&amp;E visits, elective admissions, bed days and costs. Yet despite the overwhelming evidence, there is growing worry about its implementation. We’re far from crisis point, but unless we continue to argue the case for telehealth and promote the evidence available we will allow detractors to win.

That’s why I read with worry last week that the Nuffield Trust’s Adam Steventon – one of the lead investigators behind the WSD – had claimed he doubted the safety of telehealth. As the <a target=”_blank” href=”http://www.telegraph.co.uk/health/healthnews/9509181/Doubts-raised-over-safety-of-doctor-by-broadband”>Telegraph reported</a>, he said… (more…)

Kishore Sankla, CEO of UK-based Solutions4Health, puts out a plea for proof of effectiveness through innovation and looks ahead to an era of consumer-driven services.

We in the industry are already fully convinced that telehealth works, and we have the satisfied customers to prove it.

The Whole System Demonstrator outcomes to date suggest that we have to focus in the right areas, aim for the right goals, and shout loud about our achievements in order to convince the payers of the enormous potential. Some really strong positive points have already emerged… (more…)

Following the TA item Scummy website starts to make the case for telecare/telehealth industry regulation, Editor Steve points out in this shortest-ever Soapbox that, while formal regulation may be on the distant horizon (it may need legislation, and then it has to be policed, which is another issue), there is something that the Telecare Services Association (TSA) could do in just a few months that may even make statutory regulation unnecessary… (more…)

Dr Julian Neal is a GP in Portsmouth (UK) and clinical adviser to Telehealth Solutions. In this article he picks his way through the Whole Systems Demonstrator (WSD) trial results published in the BMJ and looks forward to a more positive future – if telehealth (as in remote vital signs monitoring) is given the right conditions.

Following some frankly over-optimistic headline findings published by the UK Government in December 2011, there has been a great deal of publicity about telehealth during the last few months. Much has been cautious and some openly negative. Even the BMJ has got in on the act, publishing last month the first of five detailed papers from the WSD trial to assess the effect of telehealth on the use of secondary care and mortality. A total of 3,154 patients were recruited into this trial, approximately half of whom were provided with a variety of telehealth interventions and studied for a year. This was followed up by a thoughtful BMJ editorial a few weeks later by amongst others, Josip Car from Imperial College, London, the main thrust of which was combining caution with a need for more observational analysis.

The main findings from the first publication in the BMJ are interesting… (more…)