This month features not only a stupid patent, but also a stupid trademark to go along with it.
My Health, Inc. is the owner of U.S. Patent No. 6,612,985, which is entitled “Method and system for monitoring and treating a patient.” My Health also holds a trademark in the term “My Health.” My Health claims that it is “the only person or entity entitled to use… ‘My Health’ in commerce.”
Since getting patent and trademark rights, My Health has been pretty active in federal court. It has sued at least 30 companies for patent infringement and has been involved in another three lawsuits involving allegations of trademark infringement. But regardless of what type of case it is, we think both the patent and trademark are stupid.
First, My Health’s stupid patent. The patent is generally directed to “a method and system for monitoring and treating a patient who has one or more diagnosed conditions and is located at a remote location from a treatment processing system.” If that sounds mundane, that’s because it is.
Here is claim 1 of the patent, annotated for clarity:
1. A method for tracking compliance with treatment guidelines, the method comprising:
[a] determining a current assessment of one or more diagnosed conditions in a patient based on data about each of the diagnosed conditions from the patient who is at a remote location and on one or more assessment guidelines for each of the diagnosed conditions;
[b] updating an existing treatment plan for each of the diagnosed conditions based on the existing treatment plan, the current assessment, and on one or more treatment guidelines for each of the diagnosed conditions to generate an updated treatment plan for each of the diagnosed conditions;
[c] reviewing the updated treatment plan for each of the diagnosed conditions;
[d] determining if one or more changes are needed to the reviewed treatment plan for each of the diagnosed conditions;
[e] changing the reviewed treatment plan if the one or more changes are determined to be needed;
[f] providing the patient with the reviewed treatment plan for each of the diagnosed conditions; and
[g] generating and providing compliance data based on the updated treatment plan and the reviewed treatment plan for each of the diagnosed conditions.
This claim is essentially TeleHealth, with the addition of “generating and providing compliance data” at the end. This patent is almost surely invalid under the Supreme Court’s decision in Alice, which held that abstract ideas are not patentable, absent something more. Here, My Health is claiming little more than the idea of remotely diagnosing and treating a medical patient. This is not a new idea, and the patent doesn’t even claim how to do it, but only the idea of doing it (albeit with a bunch of patent-speak to make it look complicated). Below, we’ve annotated a clip from this 1998 episode of Star Trek: Deep Space Nine to show how the ideas in this patent are routine and conventional enough to be a plotline in a TV series:
We’re not the first to reach the conclusion the patent is invalid. In a lawsuit from last year, a defendant sued by My Health asked the court to rule the patent invalid. Unfortunately, the court said it was too early in the case to decide that issue and the parties later settled.
Along with being abstract, we doubt that this patent described anything new or nonobvious in 2001. In fact, the Patent and Trademark Office has twice agreed that there are serious problems with the patent’s validity in light of what people already knew and were doing in 2001. It instituted 2 different “inter partes” reviews, meaning on two different occasions someone was able to show that there was a reasonable likelihood that the claims were invalid. But on both occasions, the parties settled before the Patent and Trademark Office decided whether the patents should be cancelled.
My Health recently sued again based on its stupid patent, and we wouldn’t be surprised if this case also settles. By settling quickly with various parties before a court can make a decision as to the merits of it claims, My Health can continue to collect on its stupid patent.
But it’s not only a stupid patent that’s causing problems. My Health’s stupid trademark is prompting a whole other stream of litigation. Not surprisingly, plenty of other companies have used the term "My Health" to describe services that provide health information to their users. So My Health is going after them, too.
In February 2015, My Health sued General Electric (GE), and alleged that GE’s use of the term “myHealth” in connection with its online employee portal infringed My Health’s trademark. My Health claimed that it “invested substantial time, money, and goodwill in advertising and promoting [My Health] in commerce and in the healthcare and technological services sectors.” My Health further claimed that “GE is attempting to use [myHealth]…in order to take advantage of and capitalize on My Health’s efforts to market and popularize My Health.”
Given these statements, you might think My Health was an actual company with an actual business to protect. Indeed, My Health was required—under the penalty of perjury—to claim that it was using the term “My Health” in commerce in order to register it at the Patent and Trademark Office.
However, in February of this year GE told a very different story. According to a GE’s motion for summary judgment (asking the court to rule in its favor as a matter of law), My Health “did not [have] a single document showing the actual sale of any goods or services under the purported MY HEATLH mark.” That is, from the evidence GE was able to gather, “[My Health] simply obtained a patent, obtained a trademark registration, and proceeded to extract settlements based on threats of infringement litigation.”
Beyond GE’s claims, this is a trademark that never should have issued. Using the term “my health” to describe products and services related to—you guessed it—your health, is something the entire world should be able to do without fear of a trademark lawsuit. In fact, GE presented evidence that it had been using the term “myHealth” to describe its employee portal at least three years before My Health even applied for the trademark. (You can see GE’s use yourself at the Internet Archive’s Wayback Machine). It’s not surprising GE was using this term: it is a completely predictable way to describe GE’s service.
From what we can tell, My Health didn’t oppose GE’s motion. Instead, My Health settled with GE and the court never determined whether My Health was even entitled to hold a trademark in the term “My Health.” This is unfortunate, because if My Health’s patent infringement activity is any indication, My Health will continue to assert its trademark despite the serious doubts about its validity raised by GE.
My Health, armed with a stupid patent and a stupid trademark, has sued numerous companies, imposing costs on both those companies and the public at large. For that, it more than deserves this month’s award.
Source: Deeplinks | Electronic Frontier Foundation @ May 31, 2016 at 05:01PM