Ms. PACS: There is a reason that there are only a few good open source radiology PACS available today – contributors to open source need incentive to improve the software. Meanwhile, proprietary software developers are the ones making innovations and money.
With the open source business model since you cannot reap profits off the technology, you need to upsell users on ancillary services like systems integration, support, tutorials and documentation – which proprietary PACS providers already do. So, if you are a PACS provider and you want to stay in business, you need propriety software and that means patents.
Did you know, PACSman, you can even patent your business model. Yes, it’s considered intellectual property. Ever hear of Netflix, the online video rental company? The company patented its computer-implemented approach for renting flics to customers. Once it received the patent, Netflix turned around and filed a patent infringement suit against its number one competitor – Blockbuster.
As you can see, in any industry, if someone invents innovative technology, then they are entitled to receive money for it. Besides, if we didn’t have patents, then everyone would copy everyone else, making all PACS the same and leaving little incentive to develop technology to improve PACS.
And how does the radiologist benefit – he/she gets technology enhancements that help him/her do his/her job more efficiently and ideally deliver better care to the patient, not to mention make a decent living.
Unless you’re running a charity, and even in that case someone is getting paid, a PACS vendor needs to make money to pay for all of this R&D and that involves patenting new technology. Wouldn't you agree?
PACSman: I believe in a system that rewards those who come up with something new. I’m all for Superman’s “…never-ending battle for truth, justice and the American way” (as if we really have any of those today. Just ask OJ – “if the glove doesn’t fit, you must acquit”). But are the “patents” that have been issued in the PACS marketplace really new or just an opportunists taking advantage of a system where the patent reviewer really doesn’t have a clue on what existed before? In fairness to the patent reviewers, there have been so many vendors who have come and gone in the PACS marketplace (over 500 at last count) that its hard to know what was and wasn’t real from a software design perspective. But should basic software features and functionality really be patentable at all?
All PAC systems share many of the same basic features: window, level, zoom, roam, flip and rotate, to name just a few. The burning question is where do we draw the line at what constitutes advanced (“patentable”) vs. basic (non-patentable) features? Hanging protocols are basic to PACS; the same can be said about a DICOM CD having an embedded viewer in it. Without either the functionality each offers is highly limited and almost unusable. So why are these and others the subject of patents? Because when the patents were issued no one knew what did and didn’t already exist – and revoking a patent is about as hard as getting Bill Clinton to try and define what does and doesn’t constitute…. oh never mind…
History is fraught with patent horror stories. If Alexander Graham Bell hadn’t beaten Elisha Gray to the patent office by a few hours, Gray would have been considered the creator of the telephone even though Gray’s design was much more advanced than Bells. And look at television – Paul Nipkow invented a scanning disk way back in 1884 that was the precursor to TV. That was followed by Vladimir Zworykin’s patent for the iconoscope in 1923 and yet another by him for an image dissector in 1927. Yet Philo T. Farnsworth is considered the father of television, receiving patent #1,773,980 for the first television system – on August 26, 1930. It wasn’t till almost 10 years later though, after much wrangling that stunted TV’s growth, that RCA and others broke down and paid patent royalties to him. Even though he technically won, Farnsworth’s victory was short-lived though and in 1949, depressed, drunk and addicted to painkillers and with his patents about to expire, he reluctantly agreed to sell off Farnsworth Radio and Television. Once RCA owned the patent and had the resources to properly develop and promote the technology, the golden age of TV actually began…
So what of patents and patent cases being pursued in the PACS arena? A few of the smaller vendors have signed royalty agreements, but nearly all because the cost to fight a patent infringement case exceeds the value of paying the extortion fees being charged. The majors are fighting it and rightfully so…
The U.S. Patent and Trademark Office issues nearly 700 patents a day – over 182,00 patents annually – so to say it’s a daunting job would be an understatement. That said, they have a responsibility to the market to insure that the patents they issue are ones that are ones that reflect innovation. Most patents in the PACS arena, at least those I’ve seen, do not. Much of the areas that companies who have gotten patents on has been done before, but other vendors just never patented it, that’s all. After all, who woulda thunk??
Bottom line – is it wrong then to be an opportunist? Only if it hurts the market. The patents being fought over today have the potential to hurt the market….and that is not good at all. The last thing we need is a market that is depressed, drunk and addicted to painkillers like Farnsworth was just because a few companies decided to try and win the battle, while the marketplace loses the war.
Morning Headlines 4/26/24
18 hours ago
(deep breath).
ReplyDeleteIts easy to just say software patents are bad, but I'll offer a couple of reasons:
1. Patents being applied for, and often awarded are far too trivial as indeed you point out PACSMan - very often the time taken write the patent application is greater than that to write the software (indeed often there is no software - just a off-the-top-of-the-head idea).
2. Software moves too quickly, and it is fair to say that pretty much any software innovation will be developed independently within a very short space of time. An innovative software concept can be developed over the space of a week - compare that with, say, a novel way of detecting xrays - something that requires real work behind the innovation, and a patent nobody would argue with.
However, it is true that innovation in industry is based around the concept of patent, and by and large it is a system that works in other areas of technology. Many would like to see software-related patents expire on a different timescale than other patents. Personally, I would like to see expiry in 1 year. That would help with both of the above issues - there would be considerably less trivial patents because the cost of making an application would not return on investment, and independently developed solutions would get a fair bite of the cherry.
Software patents at present are a poor expression of 'the American way', and have the potential for creating real problems in the future, just as the poor expression of 'market forces' in the financial services sector has caused mayhem, culminating eh, yesterday. It is interesting that one of the noted barriers to OSS adoption in the US is the need for IP indemnification, which isn't nearly as much of an issue in most of the rest of the world (main exception Japan). Patent trolls aren't a new phenomenon, but VC-funded patient trolls are a software only stain.
Ms PACS you are so so wrong. True, open source companies rely on services for revenue (often - there are other models) but there are many examples of successful companies doing just that. In general, the successes are in horizontal markets so far (databases, ECM, BI etc) but 'vertical markets' are beginning to open up (pun not intended) - although healthcare lags behind (as with most things-IT). Open Source as a commercial driver is still maturing, but importantly, offers a model where the customer gets appropriate value, and vendors are under pressure to constantly innovate to stay ahead of the pack, and deliver quality services (or get fired).
Yes, the current swathe of proprietary vendors offer the services, but in my mind one of the reasons healthcare IT generally is in such poor condition is that those vendors, having achieved lock-in with a given customer, can offer services that simply don't cut the mustard. (here's an example - we've just spent a week with a DR system system effectively down because the engineer insisted that the worklist server IP can't be the same as the archive server IP. Oops then it was fixed. That from a vendor that charges extortionate services fees. That level of incompetence couldn't (is much less likely to :-) happen with open source because customers would have the choice to go elsewhere).
Open source companies can (in theory) focus resources on the quality of the services because the sales model isn't as intensive (no flying in an army of suits for every RFP). It has been said by many commentators that that will not scale to the multinational scale that proprietary software offers, but it does scale to the level needed to fulfill obligations made, by definition.
Sorry for the rant. Topic a bit close to my heart.
I feel compelled to say that unless you have a patentable idea and go through the cash raising and legal gauntlet to get your idea into a patent, that most people know little to nothing about patents. In applying and being granted a patent for some PACS related performance diagnositic software that rhymes with DICOMetrix, I can tell you from direct experience that the idea I came up with, not only needs a patent but it rightfully deserves one. I can also tell you that the idea 'detecting and reporting through the use of GUI with Graphs and gauages PACS performance and slow-downs in a PACS or any Medical Imaging system system using DICOM images' could not be developed independantly within a very short space in time. Otherwise it would have been, but I thought of it first and I patented the idea and technology. It has taken us thousands of hours to pull it together and we made it work. In my humble opinion, a patent is wrightfully justified for an idea that through hard work, determination, becomes a real and marketable product. This deserves some protection. I agree that patenting to just protect an simple idea thought of at a Pub and scribbled on a napkin is hardly justification for the award of a patent. Having done mine the honest and hard way, and knowing very well that the 'napkin at the pub' is frequently my media of choice for some of my best ideas, I am of the distinguished opinion that the inventor should get off the bar stool and roll up their sleeves, grab some buddies and make it work first.
ReplyDeleteCheers!
( A topic close to my heart to)
@MySharrona... You are of course dead right, the thousands of hours to pull it together & make it work should be protected (if you wish it to be). You are dead right, your product could not have been developed independently in a sort space of time, and that should be protected also. Copyright is a perfectly adequate way of doing that, in a way that does not actually stifle further innovation. More important, YOU and nobody else are the individual with the cojones to go with with it. But that doesn't mean you can't reap rewards from that without an anarchic IP system.
ReplyDeleteTaking an example in a slightly different space - server virtualisation. Virtualisation - originally developed by IBM in the 1960's, is not heavily subject to patent concerns, not because there are no patents, but because both the patent landscape and the commercial landscape are so incestuous that nobody really knows (amongst the vendors) where the benefit of patent litigation is. Over the last 6,7 years, VMWare has become overwhelmingly the market leader, but only because in this space, they and they alone had the cojones and took the (commercial) risks. Now, despite being up against serious heavyweights (MS, Citrix, Sun, Oracle and more), 'VMWare' is still the first word through the lips after 'virtualisation'. In their case, they have taken advantage of their first-to-market position by continuing to innovate, and that is the process that should be encouraged by any IP legislation.
Software, generally, and healthcare in particular, suffers dreadfully from vendors who 'happen to be first' in a particular environment, locking the market and then sitting on their hands and milking the cash cow (no allegations intended).
I did read your patent - against prevailing patent wisdom, and possibly compromising my own future position. You present a concept, though, that is effectively a re-interation of telemetry and network monitoring that is now commonplace in many network environments (albeit not DICOM-anonymised) let alone telemetric performance monitoring in F1 motoring 15 years ago. So as a 'combination of previously-known elements', would have problems getting patents outside the US. Even in the US, though, a good idea and thousands of hours of hard work still doesn't carry under the PHOSITA litmus
That said, it is a good idea & good luck with it.
Interesting advise but one should not seek legal advice froma Wikipedia reference. You are correct about general network monitoring but these patents are very specific and relate only to DICOM images and information related to medical imaging. Having gone through this with the patent examiner it is found they completely missed out on the details and one thing that failed in the Phosita litmus test is that the § 103(a) rejections because either the Examiner failed to state a prima facie case of obviousness. To establish a prima facie case of obviousness under 35 U.S.C. § 103(a), the references must teach or suggest all of the claimed limitations to one of ordinary skill in the art at the time the invention was made.
ReplyDeleteAs the details behind the examiners references failed to prove any obviousness and omitted a detailed comparison, the patents will likely be granted. Part of any invention is having a good legal staff. We used an engineering trained lawyer with several Microsoft patents under his belt.