Bessette v. Quebec (Attorney General)

Bessette v. Quebec (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-04-02
Neutral citation
2019 FC 393
File numbers
T-975-16
Decision Content
Date: 20190402
Docket: T-975-16
Citation: 2019 FC 393
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, April 2, 2019
PRESENT: The Honourable Mr. Justice LeBlanc
BETWEEN:
LUC BESSETTE
Plaintiff
and
ATTORNEY GENERAL OF QUEBEC AND RÉGIE DE L’ASSURANCE MALADIE DU QUÉBEC
Defendants
PUBLIC JUDGMENT AND REASONS
Table of Contents
I. INTRODUCTION 3
I. GENERAL BACKGROUND 4
II. DESCRIPTION OF PATENTS AT ISSUE 6
A. Patent 794 6
(1) Description 6
(2) Claims 12
B. Patent 598 13
(1) Description 13
(2) Claims 16
III. OVERVIEW OF EVIDENCE LED AT TRIAL 21
A. Plaintiff 21
B. Defendants 30
C. Expert evidence 31
D. Documentary evidence 35
IV. ISSUES 36
V. ANALYSIS 38
A. Claims construction 38
(1) Applicable legal principles 38
(2) POSITA 42
(3) POSITA’s general knowledge 46
(4) Inventions at issue, according to experts 48
(5) Meaning and scope of claims of Patent 794 50
(6) Meaning and scope of claims of Patent 598 74
B. Alleged infringement 87
(1) Applicable legal principles 87
(2) QHR 89
(3) Patent 794 106
(4) Patent 598 125
C. Alleged invalidity 146
(1) Anticipation and obviousness: Applicable legal principle 146
(2) Patent 794 151
(3) Patent 598 170
(4) Overbreadth 189
(5) Insufficiency of disclosure 192
D. Right to compensation 198
I. INTRODUCTION
[1] The dramatic evolution of communication and information technologies over the last 50 years has had a profound impact on our societies, often for the better, sometimes for the worse. Here as elsewhere in the world, this evolution has had repercussions in, among other fields, the world of health care services delivery. In particular, gone are the days when all medical and other information collected and recorded on a patient was kept only in paper format. Thanks to massive investment by our governments, such information is now in almost all cases digitized and stored in computer infrastructures that give health professionals easy and meaningful access to it. Everyone agrees that the computerization of patient records in our health systems is helping to deliver better health care at lower cost.
[2] This case involves intellectual property issues related to this technological breakthrough in the context of the Quebec government’s implementation, in 2013, of the Dossier Santé Québec, or Québec Health Record [QHR], a computer tool allowing physicians and other professionals in Quebec’s health network [translation] “to have access to information deemed essential for intervening quickly and ensuring quality follow-up with their patients” (Joint Statement of Facts and Admissions at para 44 [Joint Statement of Facts]). More specifically, the question raised in this case is whether, in so doing, the Quebec government infringed two inventions claimed by the plaintiff. There is also the corollary question of the validity of the monopoly thus claimed by the plaintiff.
I. GENERAL BACKGROUND
[3] The plaintiff is a medical doctor. He also holds, under the Patent Act, RSC 1985, c P-4 [the Act], Canadian patents No. 2,233,794 [Patent 794] (Exhibit TX-1) and No. 2,329,598 [Patent 598] (Exhibit TX-2), titled, respectively, “Method and Apparatus for the Management of Medical Files” and “Method and Apparatus for the Management of Data Files”.
[4] According to the plaintiff, Patent 794 relates more specifically to a networked medical records system. The idea of designing such a system came to him, he alleges, from his experience as an emergency room physician at the Centre hospitalier de l’Université de Montréal [the CHUM] in the 1990s. He says that, as the essence of his job was to make quick diagnoses, the information needed to do so within medically safe time frames was difficult to access because it was disseminated in a not very organized manner across several institutions and drowned amongst often irrelevant information. This system, he continues, in the interest of efficiency and cost reduction, is designed to allow the attending medical staff to quickly access relevant medical information, by first providing a summary of existing health information about the patient and then, if need be, detailed relevant information, regardless of where in the network this information was initially collected and stored.
[5] As for Patent 598, the plaintiff argues that although it addresses the same problems as Patent 794, it innovates by focusing more specifically on a particular concept of the automatic updating of summary medical information envisioned by Patent 794. According to the plaintiff, Patent 598 also introduces a system that allows health and social services providers in the network to access the most recent medical data on a patient from their own smart phones, and users themselves to do likewise in relation to the most recent medical data concerning them.
[6] The plaintiff claims that the Quebec government, through the Ministère de la Santé et des Services sociaux (ministry of health and social services) [MSSS] and the Régie de l’assurance maladie du Québec [RAMQ], a Crown corporation mandated to administer the programs of the Quebec health insurance plan [collectively, the “defendants”], has infringed Patent 794 and Patent 598 by implementing the QHR.
[7] As relief, he asks the Court to confirm the validity of the patents in question, declare that the defendants have infringed the patents, in whole or in part, directly or indirectly, and recognize that he is entitled to be compensated as a consequence of this infringement. The plaintiff also claimed the right to punitive damages but abandoned the claim at trial.
[8] The MSSS, which, under Quebec law, in this case the Act respecting the sharing of certain health information, CQLR c P-9.0001 [ARSCHI], has a mandate to establish and maintain the QHR, and RAMQ, which has a mandate to establish and maintain certain components, both deny any infringement, direct or indirect, of any of the patents in question and plead, in counterclaim, that said patents are invalid on the grounds of anticipation, obviousness, insufficiency of disclosure, lack of utility and/or overbreadth.
[9] Following an order of the Court, dated August 8, 2016, obtained upon joint motion of the parties, the present proceeding was split, with the issues regarding the assessment of damages to be decided, if necessary, only after judgment is rendered on those relating to the infringement and the validity of the patents in question and to the plaintiff’s right, if applicable, to reasonable compensation.
II. DESCRIPTION OF PATENTS AT ISSUE
[10] Patent 794 has nine (9) claims, three of which are independent claims (claims 1, 6 and 9). The application to the Commissioner of Patents [Commissioner] to have this patent granted was filed by the plaintiff on April 1, 1998, and published on August 24, 1999. Said patent was issued on February 6, 2001; it was valid until April 1, 2018.
[11] Patent 598 has (9) claims, three of which are independent claims (claims 1, 19 and 31). The plaintiff filed his application with the Commissioner on December 22, 2000, and it was published on June 13, 2002. Said patent was issued on February 24, 2015, and it is valid until December 22, 2020.
[12] The “priority” date for Patent 794 is February 24, 1998, and for Patent 598, December 13, 2000.
[13] All these dates were admitted (Joint Statement of Facts at paras 5-6).
A. Patent 794
(1) Description
[14] Under section 79 of the Patent Rules, SOR/96-423 [Rules], the abstract contained in a patent application, even though it cannot be taken into account in assessing the scope of the monopoly claimed, must be written in a way “that allows the clear understanding of the technical problem, the gist of the solution of that problem through the invention, and the principal use or uses of the invention”.
[15] The abstract of Patent 794 reads as follows:
The present invention provides a network system for storage of medical records. The records are stored on a server in a database. Each record includes two parts, namely a collection of data elements containing information of medical nature for the certain individual, and a plurality of pointers providing addresses or remote locations where reside other medical data for that particular individual. Each record also includes a data element indicative of the basic type of the medical data found at the location pointed to by the pointer. This arrangement permits a client workstation to download the record along with the set of pointers toward the remotely stored files. The identification of the basic type of information that each pointer leads to allows the physician to select the ones of interest and thus avoid downloading massive amounts of data where only part of that data is needed at that time. In addition, this record structure allows statistical queries to be effected without the necessity of accessing the data behind the pointers. For instance, a query can be build based on keys one of which is the type of data that a pointer may lead to. The query can thus be performed solely on the basis of they [sic] pointers and the remaining information held in the record.
[16] The technical field to which the invention relates is described as follows in the specification for Patent 794 (Exhibit TX-1), which specification, in accordance with section 27 of the Act, consists primarily of a descriptive part—also called a “disclosure”—and claims:
The present invention relates to the field of information distribution systems. More specifically, it pertains to a device and method for the electronic management of files within the medical and health education domains.
[17] Under the heading “Background of the Invention”, the descriptive part of Patent 794 [Disclosure 794] defines certain technical terms deemed relevant to the understanding of the patent, namely: “Client-Server”, Intranet, “Local Area Network” [LAN], “Wide Area Network” [WAN], “Open System”, “Pointer”, and “Standard Exchange Protocols”. Recent developments in the fields of information and technology and significant progress in the provision of information are noted. In particular, it shows how this evolution is bringing about profound changes in the relationship between the hospital and academic fields, particularly with regard to medical archives and databases and the ability to consult, in a transparent manner, stored information and share it in real time.
[18] Still under this heading, Disclosure 794 also deals with the limitations of prevailing practices regarding the storage of medical data in 1998, limitations linked to the fact that this storage is generally done locally and that the systems in place locally do not allow complete access to patient information from different sources, thus complicating the task of emergency room physicians. However, combining these independent local networks into a single integrated network is not the solution to this problem, for a number of reasons, particularly the storage capacity of this integrated network given the high volume of information which would be stored there, and the need for a common language allowing this single integrated network to communicate with local networks. This section of the disclosure concludes with the remark that there is a need to develop a method to access distributed medical records in a wider network and other external data in order to increase the number of sources of information available to physicians.
[19] The objectives and the summary of the invention are then described in these terms:
An object of the present invention is to provide a system and method for electronic management of files that contain medical data.
Another object of the invention is a computer readable storage medium containing a data structure that holds medical information.
As embodied and broadly described herein, the invention provides a computer readable storage medium holding a data structure, said data structure comprising at least one record associated with a certain individual, said record including:
A collection of data elements containing information of medical nature for the certain individual;
At least one pointer, said pointer including a first component and a second component, said first component being indicative of an address of a location containing additional medical data for the individual, said second component being indicative of the basic nature of the medical data at the location pointed to by the first component, said address being in a form such that a machine can access the location and import the medical data from the location.
[Emphasis added.]
[20] According to the preferred embodiment described at pages 6 and 7 of Disclosure 794 (Exhibit TX-1), the “computer readable storage medium” is a database containing a large volume of medical records related to different users of the health network. The data elements in these records are intended to be stored in such a way that they can be easily accessed, and relate to medical information that is unlikely to change over the course of the user’s life. They can also contain identifiers to distinguish one record from another. Each record also contains “pointers” linked to remote sites where digitized information on an individual’s information is stored, such as blood test or electrocardiogram results. Each pointer in turn has at least two components, namely “an address part that is machine readable to import the data residing [at] the target location and also a second part that is data indicative of the basic nature of the information held remotely”.
[21] In practical terms, this means the database can be queried remotely, from a network, in such a way as to extract the record relating to an individual. This operation is described as follows:
. . . Typically, this operation can be performed over a network, where a client workstation requests the record from a server managing the database. The server will transfer over the network links [to] the record that will be displayed on the client workstation. The information displayed is the collection of data elements permitting to identify the person and also providing the medical data that is more or less of static nature. The operator at the workstation, that would typically be a physician, also sees then the existence of one or more pointers to files holding additional medical data. The second part of each pointer indicates to the physician the basic nature of the data pointed to. He can therefore select the pointers of interest in the global set of pointers for that record and import the data through any appropriate data transfer protocol.
[22] This arrangement therefore allows the establishment of a distributed electronic medical records system where the bulk of the data (if it resides in remote sites from the central database, i.e., in most cases, where the data is collected, such as in a hospital facility) remains easily accessible through the arrangement’s pointer structure.
[23] Disclosure 794 then gives a brief description and a detailed description of the ten (10) figures contained in that patent. In particular, Figure 3 is intended to represent a network-shared medical record system incorporating the principles of the invention, an important component of which is, the description says, the “Network Distributed Shared Medical Record (NDSMR) System” [NDSMR]:
[24] Figure 5 provides a general representation of a client-server architecture implementing the NDSMR system; it shows, graphically, the interactions between the client, the server and the NDSMR database:
(2) Claims
[25] As I have already stated, there are nine (9) claims in Patent 794. Initially, the plaintiff alleged infringement of each and every one of these claims. However, he no longer claims infringement of claim 9. Of the remaining eight claims, two, I recall, are independent claims, claims 1 and 6.
[26] Claim 1 repeats verbatim the excerpt from Disclosure 794 that I pointed out in paragraph 19 of these reasons.
[27] Claim 2 specifies that the record contained in the “data structure” of the “computer readable storage medium”, to which claim 1 refers, includes a “plurality of pointers”, one of which includes a first component which is indicative of an address of a first “location” and another which also includes a first component which is indicative of an address of a second “remote” location from the first.
[28] Claim 3, meanwhile, specifies that the first and second locations, to which claim 2 refers, correspond to separate “nodes” in a network. As for claim 4, it states that the “computer readable storage medium” referred to in claim 3 comprises a multitude of “records”. Finally, claim 5 specifies that this “computer readable storage medium” will “reside” on a “server” within a network.
[29] Claim 6 relates to the concept of a “network server” and specifies certain components, namely a “processor” and “memory”. It also specifies that the memory includes, in turn, (i) a “plurality of records” containing medical information on more than one patient and at least one pointer comprising a first and a second component, as well as (ii) a program element capable, at the request of a health and social services provider connected to the server via a communication channel, of locating one record among the plurality of “records” stored by the memory, and to communicate this record to the client, via this same communication channel.
[30] Claims 7 and 8, which are dependent on claim 6, are similar to claims 2 and 3 except that they are related to the concept of a “server” as defined in claim 6, rather than that of “computer readable storage medium”, as defined in claim 1.
B. Patent 598
(1) Description
[31] The abstract of Patent 598 is for all practical purposes identical to that of Patent 794. The very few differences between them are minor and essentially semantic. As the plaintiff stated, Patent 598 addresses the same issues as Patent 794. The descriptive part of the specification of said patent [Disclosure 598] (Exhibit TX-2) also covers large parts of Disclosure 794. The figures are exactly the same.
[32] However, Disclosure 598 differs in some respects.
[33] First, it introduces the notions of “Unique Identifier”, “Uniform Resource Locator” (URL) and “Data Field”. The “Summary of the Invention” reads as follows:
An object of the present invention is to provide a system and method for electronic management of data files.
Another object of the invention is a computer readable storage medium containing a data structure that holds information.
. . .
As embodied and broadly described herein, the invention provides a computer readable storage medium holding a data structure, said data structure comprising at least one record associated with a certain individual, said record including:
- At least one unique identifier associated strictly with the certain individual;
- At least one pointer, said pointer using the URL addressing system to indicate the address of a location containing data for the certain individual, said address being in a form such that a machine can access the location and import the data from the location;
- At least one data field, said data field associated with said pointer, said data field being indicative of the basic nature of the data at the location pointed to by the said pointer.
[Emphasis added.]
[34] It also introduces a concept allowing doctors or even patients themselves to access data stored in the NDSMR database, by means of a “Personal Communication System”, such as a smartphone, or by means of a “Smart Card”.
[35] Finally, the description introduces a concept of automatic updating of medical information distributed within a network:
As embodied and broadly described therein, the invention provides a method for updating medical information distributed across a network system, the network system storing a plurality of medical records associated with respective individuals, the network system including a plurality of nodes connected to each other by data communication paths, the plurality of nodes including at least a first node and a second node, the first node storing a summary component of a medical record associated with a first individual, the summary component including a plurality of information items of medical nature relating to the first individual, the plurality of information items conveying:
a) identification of medical tests performed on the first individual;
b) reference to remote medical data stored at one or more nodes of the network system that are remote from the first node, the remote medical data conveying results of one or more medical tests identified at (a);
the method including:
(a) performing at the second node a medical information update process, which includes:
(i) receiving at the second node new medical data;
(ii) processing the new medical data to identify new medical information associated with the first individual;
(iii) initiating at the second node a data transmission to the first node, the data transmission conveying to the first node data to update the summary component of the medical record associated with the first individual based on the processed new medical data;
(b) receiving at the first node the data to update the summary component of the medical record associated with the first individual;
(c) creating a new information item in the summary component of the medical record based on the processed new medical data.
(2) Claims
[36] Patent 598, I recall, has forty-three (43) claims, three of which are independent claims (claims 1, 19 and 31). At the end of the trial, the plaintiff amended the list of claims that he alleged had been violated by the defendants following the introduction of the QHR. The claims that are the subject of the infringement allegations are now the following: 1, 2, 4, 9, 10, 13 to 16, 18 to 22, 28 to 31, 33 to 36 and 39 to 42.
[37] Claim 1 refers to a “method” for performing “automatic updates” of “summary medical information for a first patient” stored at a first “node” of a “data network storing medical information in a distributed fashion”. This network also includes a second node where new medical information concerning this patient is recorded, the first node being configured to receive information from the second node over a communication path linking the two nodes.
[38] Claim 1 goes on to state that the summary medical information to which it relates includes (i) “a plurality of information items identifying medical care services dispensed to the first patient” and (ii) “a plurality of pointers associated with respective information items of the plurality of information items”, each pointer “identifying a location in the data network that is remote from the first node” and containing additional medical information for the medical care service identified by the information item associated with the pointer.
[39] Finally, claim 1 specifies that the method to which it refers includes at least three actions:
the first, “pushing” an update of new medical information stored at the second node to the first node, “including processing the new medical information to derive update data” and “initiating at the second node a data transmission to the first node, the data transmission conveying to the first node the update data”;
the second, “receiving at the first node the update data sent by the second node”; and
the third, “creating at the first node a new information item based on the update data”.
[40] Claims 2 to 18 are dependent on claim 1. Claim 2 states that the “medical care services” to which claim 1 refers include “a medical diagnostic test performed on the first patient”. Claim 4 specifies that this test can be an “imaging test”.
[41] Claim 9 states that for the purposes of the method described in claims 1 to 7, wherein “the second node” is implemented by a “server arrangement”. Meanwhile, claim 10 specifies that for the purposes of this same method, the “first node” includes “a microprocessor associated with a machine-readable storage”, with “the summary medical information being stored in the machine-readable storage”.
[42] Claim 13 states that, for the purposes of the method described in claims 1 to 12, “the second node stores medical information about a plurality of patients”.
[43] Claims 14 to 16 deal with the “nominative information and non-nominative information” contained in a patient’s medical record of and stored in the “data network”. Claim 15 specifies that those two types of information are “stored at separate locations of the data network”. As for claim 16, it specifies that the “second node stores non-nominative information for the first patient without storing nominative information for the first patient”.
[44] Claim 18, the last of the claims dependent on claim 1, states that the update contemplated by the method defined in any one of claims 1 to 17 “conveys an identifier distinguishing the first patient from other patients”.
[45] Claim 19 is the second independent claim in Patent 598. It is about a system, not a method like claim 1. This system consists of “[a] server arrangement in a data network . . . storing a plurality of medical records for respective patients in a distributed fashion”. The server arrangement is configured for performing automatic updates of summary medical information on a patient stored at a node of the data network that is remote from the server arrangement, when new medical information for the patient is recorded at the server arrangement.
[46] As is the case with the method proposed by claim 1, the node where the patient’s summary medical information is stored does not contain all the information held in that patient’s medical file, and this summary information also includes (i) a plurality of information items identifying the medical care services dispensed to the patient and (ii) a plurality of pointers associated with those information items. Again, each pointer is used to identify a location in the data network (i) that is remote from the node where the patient’s summary medical information is stored and (ii) that contains additional medical information for the medical care service identified by the information items to which each pointer among this plurality of pointers is associated.
[47] Still according to claim 19, the server arrangement is configured so that the new medical information stored in it is pushed to the node. This includes, as is the case with the method described in claim 1, “processing the new medical information to derive update data” and “initiating at the server arrangement a data transmission to the node, the data transmission conveying to the node the update data”. This claim also states that this update data includes “an identifier distinguishing the first patient from other patients” and “information identifying the new medical care service dispensed to the first patient”.
[48] As in claims 2 to 4, claims 20 to 22 specify that the “medical care services” referred to in claim 19 include “a medical diagnostic test performed on the first patient”, and that this test may be an “imaging test” or a “laboratory test”.
[49] Claims 28 to 30, like claims 14 to 16, deal with the “nominative information and non-nominative information” contained in the medical record of a patient and stored in “the data network”. Claim 29 specifies that those two types of information are “stored at separate locations of the data network”. As for claim 30, it specifies that “the server arrangement stores [non-nominative] medical information . . . without storing nominative information”.
[50] Claim 31 is the third and final independent claim. As in claim 1, it describes a method. This time, this other method deals with the update of medical information distributed through a network system, with “the network system storing a plurality of medical records associated with respective individuals”. This system includes “a plurality of nodes” connected to each other by “data communication paths”.
[51] This plurality of nodes includes at least a first and a second node. The first node stores “a summary component of a medical record associated with the first individual”, which includes “a plurality of information items of medical kind relating to the first individual”, including (i) an “identification of the nature of medical tests performed on the first patient” and (ii) “references to remote medical data stored at one or more nodes of the network system that are remote from the first node, the remote medical data conveying results of one or more medical tests” contained in the summary of the patient’s medical record.
[52] As for the second node, the method contemplated in claim 31 provides that this is where the process of updating the new medical information gets under way (“the method including performing at a second node a medical information update process”), insofar as the second node is where the system is (i) “receiving . . . new medical data”; (ii) “processing the new medical data to identify new medical information associated with the first individual”; and (iii) initiating the transmission of an update of that information to the first node. This method also provides for the creation of a new information item in the summary of the patient’s medical record, based on the new medical information, as processed. Contrary to claims 1 and 19, there is no mention to the effect that the update contemplated in this claim is automatic.
[53] Claims 33 and 34 duplicate, for the purposes of claim 31, claims 9 and 10, which I have already discussed in paragraph 41 of these reasons. As for claims 35 and 36, they specify, in the same way as do claims 3, 4, 21 and 22, what the term “medical test” includes.
[54] Meanwhile, claim 39 specifies that, for the purposes of the method described in claims 31 to 38, the second node “stores medical information about a plurality of individuals”.
[55] Finally, claims 40 to 42 deal with, in exactly the same way as do claims 14 to 16, the location of the nominative and non-nominative information about a patient stored in the data network.
III. OVERVIEW OF EVIDENCE LED AT TRIAL
[56] The parties called five witnesses in total.
A. Plaintiff
[57] The plaintiff was the only one on his side to testify to facts. He testified mainly about his work experience, his interest in computer science, the development of the inventions covered by the two patents in question, his attempts to commercialize the invention behind Patent 794, and his interactions with the Quebec government in doing so.
[58] This is what I take from his examination-in-chief.
[59] A graduate of the faculty of medicine at the University of Montréal at the turn of the 1980s, it was in 1989 that the plaintiff made his debut as an emergency room physician in one of three institutions—Hôpital St-Luc—which would be merged in the early 1990s to create the CHUM.
[60] His idea of a network-shared medical records system comes from the challenges faced by emergency room physicians, a discipline where the window of intervention is limited by time and where, to make the right diagnosis, quick access to relevant medical information on the patient is crucial. This access is problematic for a number of reasons. First, patients often do not know their medical history or, when they do, are unable to give details given their condition when they arrive in the emergency room. Second, patient medical information is often scattered over several points on the network. A CHUM patient, for example, can have up to nine files in his or her name if that patient has been seen in each of the three CHUM facilities and has undergone medical tests, such as laboratory tests or imaging tests.
[61] Moreover, the information concerning a patient does not exist in summary form. The trend at the time was to create one record per facility and record all patient information in it, from the attending physician’s or nursing staff’s notes to information of a clinical-administrative nature. This same tendency was observed when electronic medical files first made their appearance. In other words, the tendency was towards complete or, to borrow the plaintiff’s expression, [translation] “wall-to-wall” digitization of the information that an institution holds on a given patient; the information is [translation] “stacked”, says the plaintiff, without any particular structure and without a summary providing the emergency room physician, in particular, with the [translation] “longitudinal” (i.e., chronological) trajectory of the patient in terms of diagnoses and some of the most relevant pieces of information, such as laboratory and imaging tests.
[62] Added to this is the fact that even when it is digitized, it is often not possible to consult the information held by an institution that is not the same as the attending physician’s, since each institution has its own system with its own computer language. In other words, when it comes to information technology, the institutions in many cases do not talk to each other.
[63] The idea behind Patent 794 also comes from the plaintiff’s interest in computer science, a subject in which he took a few courses while studying biophysics before starting his studies in medicine. This interest led him, in the mid-1990s, to set up a company—Communications MedNet— to develop an Internet-based medical education product. Around the same time, he was involved in organizing a conference— Medicine 2001— which brought together, in particular, representatives of the governments of Quebec and Canada as well as representatives of foreign and international organizations such as NASA and the International Society for Telemedicine. During the three-day conference, new technologies and their application to the field of medicine were discussed.
[64] In his examination-in-chief, the plaintiff described the concept behind the Patent 794:
[TRANSLATION]
Mr. BESSETTE
. . . what I quickly realized is that rather than going back and forth between all the files spread amongst the establishments, it would probably be better to have a kind of summary that tells us about the patient in a longitudinal way, what his or her trajectory in terms of diagnoses and certain relevant information such as imagery.
. . .
LEBLANC J.: A sort of chronology?
MR. BESSETTE: Chronology. You’re right.
So, organize the information chronologically and also in a summary way.
Very quickly, it also occurred to me that we could not necessarily have all the information on the summary sheet because there is too much information and sometimes there is no need to consult it.
For example, if I have the results of a CT scan, do I need to have all those pictures as an emergency room doctor, when I’m not the one who interprets them, where it’s up to a radiologist to interpret them? I only need to have the report.
I could also have the extra images, but what I mean is that I was making a distinction between the fact that I wanted to know if such an exam existed and how to get information on that exam; or would I need to dig a little more? So, a kind of summary where I could dig deeper on demand by going to further layer, or at least find a little more specialized information.
And that’s what we identified as a pointer, and the pointer had to have two distinct characters. Potentially, it had to point to a place where we could get the information and give information on the nature of the information I was going to look for, for example, if what I am looking for is an X-ray, is it an X-ray of the lungs? Is it an X-ray of the ankle? Is it an X-ray of the hip?
Because if someone comes to see me because he has a hip problem, I do not necessarily have to look at his lung X-ray. I can compare the hip with the hip.
. . .
So basically, the concept that was developed . . . that I developed in ‘98 saying to myself, if I had this in the emergency room, it would solve a lot of problems. It would allow me to have a kind of summary dashboard of the history of a patient and then be able to make a much faster decision. So, this is pretty much the genesis, I would say, of the invention’s design.
(Transcripts, May 28, 2018, at pp 86-89)
[65] The plaintiff stated that, from a technical point of view, they had to find a method for extracting information that was encapsulated in a particular computer format, depending on the institution where it was digitized or kept, make a useful summary of that information and archive everything using an [translation] “open” protocol, that is, one that ensures accessibility regardless of the institution where the doctor consults it (Transcripts, May 28, 2018, at pp 93-95).
[66] In the fall of 1998, the plaintiff took steps to obtain institutional, financial and technical support for his network-shared medical records system project. Those steps were first taken in connection with a pilot project in pediatric cardiology to make computerized patient records accessible through an open system so that the information in these records could be shared between the various pediatric cardiology departments in Quebec. This project was supported by pediatric cardiologist Alain Cloutier of the Centre hospitalier universitaire de Québec (Exhibit TX-121).
[67] With this support, the plaintiff contacted the company then mandated by the MSSS to manage the Quebec health network’s shared information assets and to provide technical support for the network’s institutions. He was looking for [translation] “structuring support within the network” insofar as developing the pilot project required equipment belonging to the (public) health network. On April 15, 1999, this company, SOGIQUE, confirmed its interest in joining the pilot project. It saw its collaboration in the project as a way of ensuring that the project would complement [translation] “the work of the various provincial committees currently under development”, particularly those related to [translation] “the deployment of the Réseau de télécommunications sociosanitaires (RTSS), the generic query/result system and the shareable patient record” (Exhibit TX-122). SOGIQUE’s support extended to seeking out the necessary financing to carry out the project. Marketing the pilot project outside Quebec was also part of the discussion and of SOGIQUE’s interest in the project (Exhibit TX-122).
[68] In September 1999, Hewlett-Packard (Canada), a company specializing in the development of electronic equipment, joined the plaintiff’s pilot project. Its association with the project took the form of a contribution, in money and services, totalling $750,000. Hewlett-Packard also committed to seeking input from strategic partners, including Microsoft (Exhibit TX-123).
[69] Meanwhile, the plaintiff, through his legal counsel at the time, requested a meeting with the then Deputy Premier of Quebec and Minister of Finance, the late Bernard Landry. He hoped that Mr. Landry could facilitate the implementation of his project and [translation] “thereby foster the development of a strategic sector of the economy of tomorrow that would confirm Quebec’s position in the pharmaceutical and biomedical sectors” (Exhibit TX-124). This meeting took place at the end of fall 1999. Representatives from Hewlett-Packard and Microsoft attended. The Deputy Prime Minister was receptive to the plaintiff’s pilot project and suggested that he get in touch with the people at Investissement Québec, then the Société générale de financement.
[70] Also in the fall of 1999, the plaintiff, thinking that if his project was good for pediatric cardiology it could also be good for adult cardiology, gauged the interest of the Montréal Heart Institute. On October 21, 1999, the Institute confirmed its interest in partnering with the plaintiff and his partners, Hewlett-Packard and Microsoft, [TRANSLATION] “to deve