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PTO Grants Teladoc Petition to Review American Well Patent

By Kyle Murphy, PhD

- The battle between telemedicine providers American Well and Teladoc is now headed for an official review of a contested patent by the United States Patent and Trademark Office (PTO).

On September 14, the federal agency concluded that the patent challenge brought forward by petitioners Teladoc earlier this year "establishes that there is a reasonable likelihood that Petitioner will prevail in challenging claims 10, 11, 23, and 30 as unpatentable under 35 U.S.C. § 102(e)."

The crux of the case centers of American Well's "system and method for receiving requests from consumers to consult with service providers and establishing a connection between consumers and service providers," the patent (US7590550 B2) which the company asserted was infringed by the Teladoc System.

American Well summarized its patented technology in a legal complaint against Teladoc back in June:

For example, claim 10 of the ’550 patent describes a computer-implemented method comprising “accessing a data repository that stores information pertaining to medical service providers, including present availability of the medical service providers for participating in a consultation; receiving in a computer, indications that members of a pool of medical service providers have become presently available; receiving in the computer, a request from a consumer of services to consult with a medical service provider; identifying in the computer, an available member of the pool; and establishing a real-time communication channel between the consumer of services and the identified member of the pool.”

In an American Well's complaint, the telemedicine company sough to prevent Teladoc from operating its Teladoc Systems as well as to recover damages at three times the amount based on the latter's willingness to infringe the American Well patent.

The components of the patent contested by Teladoc take issue with claims 10, 23, and 30 — a computer-implemented method, a computer program product residing on a computer readable medium for providing broker services to consumers and service providers, an apparatus.

As noted in the PTO order to proceed, the office has certainly not made a final determination as to the patentability of Teladoc's claims but has ordered an inter partes review.

Proceedings for the patent appeal kick off on November 23 with American Well required to respond to the Teladoc petition at that time or file a motion to amend the patent.

On Feburary 9, Teladoc will have an opportunity to respond to the patent owner's response to the petition and voice its opposition to a possible motion to amend.

If matters proceed beyond that point, observation regarding cross-examinations and requests for oral arguments could take place.

By now, Teladoc is no stranger to legal opposition to its approach to delivering telehealth services. The telemedicine company scored an important victory, a preliminary injunction, against the Texas Medical Board, which attempted to impose a rule against Texas physicians providing telehealth services without an initial face-to-face encounter.

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