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22 May 2019
In a digital-age David versus Goliath case, Dr Luc Bessette has come head to head with the Quebec government in a battle over rights to a technology solution that provides shared access to critical medical information through a global network.
In an era where technology is omnipresent in daily life, it is difficult to imagine a time when medical information could not be freely shared among healthcare professionals through the digital clouds. However, in the late 1990s when the Internet was in its early days, paper-based patient records were widely dispersed across different physical locations, making them difficult to access.
Bessette envisioned a revolutionary solution for a system that would provide health professionals with instant access to critical medical information, enabling them to respond more efficiently and effectively to the urgent care of patients. Unfortunately, without the support of the Quebec government, Bessette was not able to personally make his dream a reality. He did, however, have the foresight to legally protect his idea with patents.
On 2 April 2019, in Bessette v Procureure Générale du Québec et Régie de l'Assurance Maladie du Québec, the Federal Court held that the Quebec government had infringed two patents owned by Bessette relating to a shared medical records system that he invented 20 years ago.
This is the first time that the Quebec government has been held liable for patent infringement.
Bessette came up with an idea that would allow access to shared medical records in an enlarged health network, which would help during emergency procedures and diagnoses and also reduce costs by preventing unnecessary duplication of medical tests. The key aspect of Bessette's system was that a health professional could obtain access to a summary of a patient's most relevant medical information, which pointed to other relevant medical information made available across the network on an on-demand basis.
Between 1998 and 2000, Bessette developed a pilot project to implement his system that eventually led to the issuance of several patents in Canada and the United States, including the two Canadian patents at issue. Bessette sought institutional, financial and technical support for the implementation of his project, including from the Société de Gestion Informatique du Québec and Quebec's minister of finances and deputy premier, which led him to submit the pilot project to what is known today as Investissement Québec, as well as the Ministry of Health and Social Services (MSSS). Unfortunately, Bessette's pilot project was summarily rejected by the MSSS in May 2000.
Simultaneously, the federal government, recognising that many health professionals in Canada faced similar challenges to Bessette, created a non-profit organisation called Canada Health Infoway, with the objective to create electronic health records across Canada. In light of this initiative, and despite having rejected Bessette's project, the Quebec government, through the defendants MSSS and the Régie de l'assurance maladie du Québec (RAMQ), began developing the Quebec Health Record (DSQ). The DSQ was officially launched in 2013 throughout the province of Quebec.
The DSQ provides health professionals in Quebec with access to essential patient medical information, such as pharmacological profiles, laboratory test results and medical imaging results. Such information can be retrieved irrespective of:
Further, the DSQ was developed to allow the automatic updating of the medical information available in the system when new results are available.
The DSQ has different access points, including web-based tools, which allow 49,000 authorised health professionals to access the medical information of a given patient, as well as patients themselves to access their information.
The Federal Court found that the DSQ directly infringed most of the alleged claims of Bessette's two patents.
Noting that the DSQ is broader and more complex than the system protected under the patents at issue, the court emphasised that such a finding was not sufficient to deny an allegation of infringement. Rather, the infringement analysis must turn on whether the various elements of the claims of the two patents, as interpreted by a person skilled in the art, are found in the infringing system (ie, the DSQ).
As such, the court concluded that the first patent was directly infringed by the defendants MSSS and RAMQ by setting up and operating the DSQ. Importantly, the court also held that the defendants were equally liable for inducing infringement each time a health professional or patient accessed the DSQ, since such use would not have been possible without the defendants' authorisation.
The court held that the second patent is directly infringed every time a new imaging test result is automatically indexed in the DSQ.
In its counterclaim, the defendants argued that the two patents were invalid for anticipation and obviousness, among other things. Having analysed the prior art presented by the defendants – including medical journals and US-issued patents – the court upheld the validity of the first patent and most of the claims of the second patent.
Of note, the court interpreted Bessette's patents using the eyes of a person skilled in the art at a time where the Internet was not as prevalent and popular as it is today. As such, it is important to realise that, with the rapid growth of the Internet, what may appear trivial today might not have been 20 years ago.
Interestingly, the court agreed with counsel for the plaintiff that anybody can be an inventor and that they do not have to understand each scientific principle underlying the invention. It is the role of the patent agent to understand the full scope of the invention and to draft the claims accordingly. Citing a well-known author in the field, the court highlighted that "the inventor invents the product and the patent agent invents the invention".
On the basis of the court's findings on infringement and validity, the court concluded that Bessette was entitled to an award of damages, as well as reasonable compensation relating to the infringement of the second patent for the period before that patent was granted. Since the parties decided to bifurcate the liability issues from the question of damages, the financial compensation awarded to Bessette will be determined in a future proceeding.
This decision provides important guidance to institutions, enterprises and inventors alike. For institutions and enterprises seeking to develop and commercialise their innovations, this case highlights the importance of conducting due diligence by reviewing the patent landscape before they develop new products and services. For inventors, this case reinforces the benefits of protecting ideas and rigorously defending them through patent infringement proceedings. Most importantly, patent owners should not be afraid to stand up against Goliath.
Both defendants have appealed the decision.
For further information on this topic please contact Joshua Neubarth or Marie Christine Bernier at Smart & Biggar/Fetherstonhaugh by telephone (+1 514 954 1500) or email (firstname.lastname@example.org or email@example.com). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.
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