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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 our daily lives, 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 1990’s when the internet was in its early days, paper-based patient records were widely dispersed across different physical locations, making them difficult to access.

Dr. Bessette, a physician ahead of his time, was working in the ER when he envisioned a revolutionary solution for a system that would provide instant access to critical medical information to empower health professionals to respond more efficiently and effectively to the urgent care of patients. Unfortunately without the support of the Quebec government, Dr. 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 April 2, 2019, in Bessette c Procureure Générale du Québec et Régie de l’Assurance Maladie du Québec, the Federal Court rendered a decision holding that the Quebec government had infringed two patents owned by Dr. Bessette relating to a shared medical records system that he invented twenty years ago.

This is the first time that the Quebec government has been held liable for patent infringement.

The plaintiff Dr. Bessette was successfully represented by François Guay, Jean-Sébastien Dupont and Camille Lachance Gaboury of Smart & Biggar’s Montreal office.

 

Background

Dr. Bessette has been practicing medicine in Quebec since 1981. In the late 1990’s, he was faced with the challenges of treating patients in the emergency rooms of the Centre Hospitalier de l’Université de Montréal, which has three different sites in Montreal with distinct medical records. 

He came up with an idea that would allow access to shared medical records in an enlarged health network, which would provide valuable information to healthcare professionals for emergency procedures and diagnoses, with the benefit of reducing costs by preventing unnecessary duplication of medical tests. The key aspect of Dr. 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, Dr. Bessette developed a pilot project to implement his system that eventually led to the issuance of a number of patents in Canada and the United States, including the two Canadian patents at issue.

At the time, Dr. Bessette sought institutional, financial and technical support for the implementation of his project. He initially presented his pilot project to Société de Gestion Informatique du Québec who showed interest in collaborating with the project, as did reputable businesses such as Hewlett-Packards and CGI. In addition, Dr. Bessette met with 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(Ministère de la Santé et des Services Sociaux - “MSSS”). Unfortunately, Dr. Bessette’s pilot project would not come into fruition; in May 2000, it was summarily rejected by the MSSS.

Simultaneously, the federal government, recognizing that many health professionals in Canada face similar challenges to Dr. Bessette, created a non-profit organization called Canada Health Infoway, whose objective was to create electronic health records across Canada. In light of this initiative, and despite having rejected Dr. 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(“QRH”, in French: Dossier Santé Québec -“DSQ”). After years of development and notorious delays and budget overruns, the DSQ was officially launched in 2013 throughout the province of Quebec.

The DSQ is a system providing 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 where the tests were conducted, where the patient received their medication or the location in which the health professional consulted the system. 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, namely the “Visualiseur” and the “Carnet Santé Québec”, which allow the 49,000 authorized health professionals to access the medical information of a given patient, as well as patients themselves to access information that concerns them.

 

Infringement

The Federal Court, relying on the extensive evidence presented by the plaintiff’s expert witness, found that the DSQ directly infringed most of the alleged claims of Dr. Bessette’s two patents.

Noting that the DSQ is broader and more complex than the system protected under the patents at issue, the Court emphasized 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 the person skilled in the art, are found in the infringing system, namely 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’ authorization.

With regard to the second patent, the Court held that it is directly infringed every time a new imaging test result is automatically indexed in the DSQ.

 

Validity

In its counterclaim, the defendants argued that the two patents at issue were invalid, among other reasons, for anticipation and obviousness. Having analyzed the prior art presented by the defendants, including medical journals and American-issued patents, the Court upheld the validity of the first patent and a majority of the claims of the second patent.

Of note, the Court interpreted Dr. Bessette’s patents using the eyes of the 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 realize that, with the rapid growth of the internet, what may appear trivial today, might not have been twenty years ago.

Interestingly, the Court agreed with counsel for the plaintiff that anybody can be an inventor and that he or she does 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 reminds us that “the inventor invents the product and the patent agent invents the invention.”

 

Damages

On the basis of the Court’s findings on infringement and validity, the Court concluded that Dr. Bessette is 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 Dr. Bessette will be determined in a future proceeding.

 

Conclusion

This decision provides important guidance to institutions, enterprises and inventors alike. For institutions and enterprises seeking to develop and commercialize 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, please contact a member of our firm’s Litigation group.

 

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.