Before COVID-19, people living in rural and isolated areas urgently needed to access health care services remotely; now we all do. Thanks to decades of innovation in computing and telecommunications, more essential health care services are available electronically than ever before. But there’s no guarantee they will always be as accessible and affordable as they are today. Because the Patent Office keeps granting patents on old ways of using networked computers, it keeps gambling with the public’s future access to telehealth technology.
The term “telehealth” includes any way of using electronic information and telecommunications technology to provide or administer healthcare and services related to health care, like electronic recordkeeping. It’s broader than “telemedicine,” which refers only to ways of using telecommunications to replace clinical care, like videoconferencing can. Both have become increasingly essential in the wake of COVID-19. According to one recently-published study, telemedicine services grew by more than 1000% in March and more than 4000% in April of 2020. Although people are going to doctors in person again, the demand for telemedicine is still expected to grow.
Though the urgent need for telehealth is relatively new, the ability to make and use it is not. Our government has been developing and deploying these technologies for more than sixty years with early projects through the U.S. Space Program, including one involving the Tohono O’odham Indian Nation that demonstrated the feasibility of providing medical care via telecommunication in the 1970s.
With so many pioneering advances in the past, it should be challenging to get new telehealth patents today. It should be even more challenging since the Supreme Court’s 2014 decision in Alice v. CLS Bank that generic computer technology cannot make an abstract idea eligible for patent protection. Unfortunately, our latest Stupid Patent of the Month shows the Patent Office is not doing its job. Instead of granting patents on new and useful inventions, it is rubber-stamping applications on anything under the sun without regard for the requirements of patent law or needs of the public during the present health crisis.
U.S. Patent No. 10,882,190 (’190 patent) wins March 2021’s Stupid Patent of the Month for the “Protocol for a Remotely Controlled Videoconferencing Robot,” granted on December 16, 2020. The owner is Teladoc Health, a publicly-traded, multinational telehealth provider. Since launching in 2002, Teladoc has acquired numerous smaller entities. And in the middle of 2020, Teladoc acquired InTouch Technologies, along with its massive portfolio of telehealth patents and patent applications. Teladoc has not waited for COVID-19 to abate to assert several of its newly-acquired patents against smaller rival Amwell, a telemedicine provider with about 700 employees based in Boston.
The ’190 Patent has one claim for a “robot system that communicates through a broadband network.” The system comprises multiple “robots,” but for all the science fiction fantasies that word conjures, these robots can be any kind of computing device with a camera, monitor, and broadband interface. Whatever these robots are, they’re not claimed as the invention. The claimed invention is a system where at least one robot “generates a goodbye command that terminates a communication session” with another robot and “relinquishes control.”
A network of computers that can start and stop communicating with each other is not a patent-eligible invention; it’s just a computer network. As a result, there’s nothing in the ’190 Patent claim that could qualify as an invention attributable to the applicant rather than prior computing and telecommunications advances. But as we’ve explained, the Patent Office under former Director Andrei Iancu changed the rules to make it practically impossible for examiners to reject patents claiming generic computer system even when Supreme Court precedent requires it.
The Patent Office should have rejected the ’190 Patent application for other reasons too. The application was filed in January 13, 2020, but that was not its priority date. If it were, the Patent Office could have considered technology from 2019 when deciding whether the application claimed something truly novel. But because the ’190 Patent was filed as a “continuation” of an older application filed on December 9, 2003 (and granted as a patent in 2010), it is treated as if filed on the same day, and gets the same early priority date. That means the Patent Office could only compare the application filed in 2020 to technology that existed before 2003, and had to ignore all intervening advances in the field. Scholars have reported on the outrageous continuation system for years. As long as it persists, patent owners will be able to extend their patent monopolies beyond twenty years.
Continuation abuse aside, the Patent Office had plenty of pre-2003 prior art to consider.
For example, Columbia University had for years deployed more than 400 home telemedicine units that provided synchronous videoconferencing over standard telephone lines, secure Web-based messaging and clinical data review, and access to Web-based educational materials. But there’s no sign the Patent Office considered that or anything else. As early as 1995, there were prior art robot systems in which multiple users could take turns controlling robots remotely.
Yet there’s no indication the Patent Office considered these prior art references or any others. In fact, there’s no sign the ’190 Patent got any substantive examination at all. The Patent Office granted the ’190 Patent in less than a year without leaving a trace of its reasoning. The examiner did not even issue a non-final rejection, which had long been standard practice for the vast majority of patent applications. Although we advocated for more rigorous patent examination procedures, we have rarely seen records of an examination as deficient as this.
The job of the Patent Office is not to simply grant patent applications on demand, but to examine patent applications so that only those compliant with the law become granted patents. When the Patent Office fails at this task, the public’s access to technology falters. Given the pressing need for telehealth access, we need a Director who will focus on getting examiners to apply the law correctly instead of pushing them to grant as many applications as possible.