Healthcare applications in the cloud

Healthcare is a field that has undergone great technical development over time. For example, radiology departments have progressed from acquiring and reviewing X-ray images on film into a fully digital imaging environment.

Electronic medical records are replacing paper-based patient records, to improve administrative efficiency and make patient information instantly available to authorised healthcare personnel without geographic limitations. Having the information available in digital form also means that data can be communicated quickly and cost-efficiently.

Nationwide electronic health record systems also use distribution servers outside the local hospital network. This generally means outsourcing data storage and data processing to third party organisations which operate hardware in data centres that are not under the control of the healthcare organisation. Such a trend is also prominent in consumer products, such as the email and mapping applications provided by Google and other companies.

Google and Microsoft have already launched ‘health vault’ products that allow patients to store their complete medical records in the cloud, giving them full control over their data. However, the term ‘cloud computing’ has started to appear prominently in US patent publications only since 2011. Since then, the number of published patent applications relating to cloud computing has grown dramatically.

In healthcare, the possibilities of cloud computing are seemingly even wider, because for some clinical tasks it does not matter where they are performed. There is no need for a radiologist to be working in the same hospital where the images are generated, when the images are sent into the cloud to be reviewed using a web application that can be accessed from anywhere. By using cloud computing, computer hardware may be utilised more efficiently and software deployment may be easier and more uniform.

For example, Philips eICU is a product that uses software, video and audio feeds and realtime patient vital statistics to hook patients in intensive care units (ICUs) in multiple hospitals to central monitoring facilities manned by ICU specialists. This enables a limited number of ICU specialists to monitor a large number of patients. This not only reduces the amount of labour involved in monitoring patients, but is believed to improve the quality of monitoring, leading to a reduction in the number of complications and the average ICU stay.

IP implications

What exactly does the term ‘cloud computing’ mean? The word ‘cloud’ deliberately indicates a certain vagueness. In the cloud, computer functionality is offered as a service rather than as hardware and software that is sold as an object of property. In some cases, users of a cloud service pay only for the services they use.

The user of the service does not need to know where and how the service is implemented, or even who owns the hardware on which the user’s confidential data is stored, because the service provider may hire computer resources from other cloud infrastructure providers. Moreover, the geographic location, even the country, in which this hardware is located, may be unknown to the client. The data may be divided over a plurality of data centres all over the world.

These features of cloud computing give rise to many legal issues, including issues of IP, privacy, and liability. Since it is a relatively new field of technology, there is a great potential for patent applications to be filed, and from the increasing number of published applications in the field of cloud computing, it can be seen that companies are eager to fill the void.

By the very nature of cloud computing, it may be unclear which legal entity brings an invention to practice, and in what jurisdiction. Worse, multiple parties located in potentially multiple jurisdictions may together carry out a method, wherein no single party infringes a patent claim, but the parties together do.

According to the patent law in most countries, to show direct infringement of a method claim, it is necessary to prove that a single party performs all the steps of the claimed method within the territory covered by the jurisdiction of the patent.

The legal situation is not always clear when some of the method steps of a claim are performed by third parties or on a computer outside the jurisdiction of the patent. Although many jurisdictions include provisions on induced or indirect infringement in their legislation, depending on the circumstances this may lead to a more difficult position for patent owners.

In cloud computing, services are provided from a remote data centre that is normally inaccessible to the public. Operators of cloud computing hardware do not generally provide details about the implementation of their data centres.

Therefore, there is no concrete product that can be reengineered to find out how it works. Process steps performed in the cloud, as well as details of the physical implementation of servers and their messaging protocols within a data centre, may be impossible to uncover by using publicly available information. Consequently, it may be difficult to make a prima facie case of infringement.

These aspects can make it more difficult to enforce patents. During the filing and prosecution of patent applications, this may be addressed by drafting patent claims that define only those features of an invention that are under control of a single party. Infringement of claims defined in terms of functionality provided to the end user may be easier to show than claims that define an invisible algorithm that is performed ‘in the cloud’.

However, when a claim does not define all the features that are essential for the invention in their proper interrelationship, the patent application may be refused. The patent attorney has to find a balance between these two interests.

Since cloud computing-based inventions are typically computer-implemented, the legislation applicable to software patents is equally applicable to cloud computing. In Europe, this means that a technical effect is required to avoid an excluded subject matter rejection. In the US, unduly abstract processes should be avoided in patent claims. Careful drafting of patent claims may help to avoid such rejections.