MirrorMed, Medical Manager and mm2mm

So originally MirrorMed was a fork of ClearHealth. It was done to satisfy my need to get certain features done… but now ClearHealth has moved far past it… the usefulness of the “fork” part of this has diminished to nothing.

Still there were a few useful things in MirrorMed that have not been replicated in ClearHealth or anywhere else that I know of.

The most useful of these was a tool that I built called mm2mm

mm2mm is a Medical Manager to MirrorMed integration engine. Basically it a php parser for the medical manager data files that allows you to seamlessly move to MySQL. I have used this tool more than any other part of MirrorMed, and so I am now releasing it Open Source (AGPL 3) and completely costless. You can download it from the MirrorMed sourceforge site.

For those who are interested in Medical Manager, you might enjoy reading the history of Medical Manager, which I maintain. Recently someone reminded me that there have now been convictions in the Medical Manager dealership scandal.

Medical Manager was my family business for many years. My Aunt and Uncle still work tirelessly to support clients and my grandfather, now deceased, helped them start the business. The Medical Manager dealership scandal, where Medical Manager ousted small dealerships and apparently accepted bribes to buyout the larger dealerships originally taught me that nothing but Open Source was viable in healthcare informatics.

The release of mm2mm has brought me full circle with Medical Manager. It makes it trivial to use a FOSS EHR like ClearHealth, OpenEMR, OpenVistA or Astronaut VistA on top of an instance of Medical Manager but most of the people who have used mm2mm as beta testers were interested in creating a web-archive of the medical manager database or in entirely migrating away from Medical Manager.

Medical Manager was a great product, but years of neglect and proprietary thinking have doomed it. It might be possible to save if it was released as Open Source now, but it is probably too late.

Oh well…

-FT

betting on quantified self

So I lost the Health Developer challenge to ringful. But they had a pretty good app, so there is no shame in that.

More importantly, I think I really made people think.

Steven Downs of project health design, said this about toeleven.org:

However, instead of using Google Health or HealthVault as a platform, Fred used Twitter. Fred had the notion that people already use Twitter to track what is happening with their lives, so why not track what is happening to their health? That builds upon another key finding from Project HealthDesign: help people track their health information by incorporating the process into their existing daily routine, not adding something new

So basically, while they did not chose me to win the contest, they got the point I was making. If I had time to add some graphical goodness to the app, then I think I might have been able to make a better stab at being more competitive from a user experience standpoint, and I think I might have done better. There is always the next contest.

Still I have made strong headway with the notion that the quantified self movement, is merging with the PHR movement. The quantified self guys are pushing this logging to Twitter thing pretty hard. And toeleven.org is one idea about how to fully move Twitter into the PHR space. We will see how that community reacts to these ideas.

I think it is inevitable that the notions of the “life stream” as per facebook and twitter and the notions of traditional PHR will begin to merge. It is not a question of whether?, but rather when?, and how?

toeleven.org is an Open Source app looking for a project manager.. contact me if you are interested in owning the project…

-FT

My Health2.0 submission goes to eleven

I decided to enter the Health 2.0 Developer Challenge.

My submission is toeleven.org

My goal was to find a way meet one of the challenges using some kind of integration with our new Audio PHR system Your Doctors Advice. (At the time of the writing its in a closed beta… you can sign in, but cannot use it yet) This has been the project that I have been working on for almost a year, with Cautious Patient.  but I let time get away from me, and I could not find a way to get anything interesting done in time, that applied to any of the Challenge categories. Next year we will consider writing our own challenge.

But I discovered that a part-time project that I have been working on for the last month or so actually applied to a contest to re-implement some of the original Project HealthDesign applications. One of those applications was, specifically, an application designed to track Observations of Daily Living (ODLs) for people with chronic pain. I have friends and family with chronic pain, and I actually wrote this application to help one of them keep a pain/food journal more easily.

The contest had two requirements: re-implement one of the original designs from one of the videos, and use a “commercially available PHR service that can securely store the data”.  What is a PHR? It is a personal (or “personally controlled”) health record. What the contest makers meant was to try and get new functionality available in Google Health, or HealthVault or Dossia or the like.

Well Google Health has been, until very recently been incapable of storing ODLs because it insists on the limited data that a CCR can encompass. Even with the new update, Google Health has limited abilities to store arbitrary data. Im not sure if I can easily include pictures of food in a Google Health app (this might have changed recently). HealthVault has famously supported the recordings of arbitrary data, but is so capable in this regard that there is little need to force the data into any standard at all.  If I want to participate in either approach, I have to go through very extensive integration and approval process. Neither platform is truly open. Perhaps that makes them “safer” for patients, but perhaps that just makes them walled gardens with useless inscrutable iphone-app-store-like approval process that stifles true innovation… you know… one or the other….

I much prefer Twitter and Facebook as application platforms, who have far more open application approval processes. These platforms have realized that their success is tied to the openness of their networks. They are acting much more like “Internets with new protocols”.

But Twitter is not appropriate for health data… because it is essentially a public broadcast medium? Right? That is the way it is typically used, and it is certainly a broadcast technology. But it is not necessarily “public” broadcasting. You can change any twitter account into a protected account, that will ensure that only people you want to see it can see it. So Twitter is “commercially available” that can “securely store the data”, but is it a PHR? I think it is if you use it like one. In fact, it is probably one of the most popular platforms for logging health, wellness and fitness information on the planet.

I think an application that relies on Google Health or HealthVault faces an uphill battle, because that is not where people are tracking ODLs. People actually use Twitter and Facebook to track what is happening in their lives. They use it to record their mood changes, their stress levels and details about how their bowels are moving. Most importantly for my purposes people are already using Twitter as a food diary.  If you want to save time you can just take pictures of your food and use that instead of trying to write down anything. If you are interested in finding out what food might cause pain you are more interested in ingredients than calories, and so food diaries that focus on accurately tracking calorie intake are overkill.

So I wanted a way to simply and easily track ODLs of pain, using Twitter, right beside the already smooth process of tracking food intake.

But I wanted to do this in a way that would be easy to data mine, so that I could take the food data, or pictures, and overlay that in a data-mining friendly way with the pain data. Obviously, I needed a good syntax for recording the pain information, and so I did some research on micro-blogging ODL syntax options. I ultimately settled on the grafitter syntax, because its site was actually up and doing cool data mining stuff. But I did not want my friend to need to actually learn any kind of “twitter syntax” to log her pain. Instead I wanted her to have a simple web form that she could use on her smart phone, that would allow her to quickly and accurately describe her pain. Just like the video from Project Health Design on Helena.

So what is Helena doing? In the video, she is recording which medications she is on. But that is one of the few things that doctors have (or should have) accurate data on. Other than recording that medication data, she is simply creating a ODL system that is customized to her world, allowing her to track -when- she takes the medications, which in her world is just “the yellow pill” or “the big pill”. Moreover, she wants to log three specific things that seem to impact her pain: sleep, yoga and the local weather. But the Twitter ecosystem already takes care of all of that. There are devices that track sleep, that can log the sleep quality data to Twitter. Helena could use fitbit which could log her movement during yoga workouts to Twitter. She can even use Twitter to track the local weather.

Helena and my friend, both have the ability to log very different kinds of data to twitter that are difficult and or time-consuming to acquire in any other way. All they need is a method to create and record their own “Pain Tracking Interface” that could be used to describe what they were going through. One of the project health design teams described one such interface, as part of the many things that the teams released.

So I built a new Twitter application to do that. Its easier to understand if you see it in action once, so here it is:

You can try the application yourself at toeleven.org

So this is not only a method for creating a “Pain Tracking Interface” but for tracking anything you want to perform careful date-stamped quantitative analysis. There is little that you could not track using the system, and it will perfectly interface with any other Twitter data stream so that you can perform data analysis on yourself easily, using Grafitter, or something else just like it.

I want to be clear. I did not write this application to win the contest. I wrote this application to help my friend. It is far enough along that my friend can do what she needs to figure out her pain. This idea can easily go farther, but this is not my main priority. I am going to talk about where this should go, but do not assume that I am going to be the one to do this. Competition and collaboration welcome.

I am releasing all of the php sourcecode for toeleven.org as Open Source as soon as I have the cycles. I think the following work needs to be done on the system.

  1. Create a replacement data analysis tool for grafitter, with more functionality, specific to ODLs
  2. Improve the iphone and android specific interfaces to the ODL forms
  3. Build in facebook integration for those that do not want to link twitter to facebook
  4. Create much better form-builders that make it more obvious how to build forms for different things, specially targeting HTML5 (I feel doing fancy work in the HTML4 world is a waste of time at this stage)
  5. Allow users to share their ODL forms that “standardized” ODL forms might become popular based on some kind of crowd-sourcing approach.
  6. The interface is a little sparse, could be improved alot with some good design work.

I also did not submit the application to win the contest, as much as to try and reframe the problem. I want to make a difference in the world of Personal Health Information, and I know I am not alone in this. But we need to stop trying to force people into behaviors that they will never commit to. The largest single “addressable” healthcare issue is compliance. If we all did what we should know that we are supposed to do, then many of the difficult healthcare problems, like Diabetes, Heart Disease and even HIV would become rare events, and manageable for our society.  I am overweight. So I have a compliance problem. I need to focus on losing the weight, which will protect my heart in the long run, rather than interfacing with some software that I have to comply with. Our goal with the Audio PHR, is to create an application that helps people do the right thing more than it creates new user burdens. I am not convinced that our PHR philosophies are simple enough. I am not convinced that toeleven.org or our Audio PHR is simple enough. But they are simpler. That is a step in the right direction.

Normally, I would also talk about how we need to be working together on open systems using open source software at this point. But Project Health Design and Robert Wood Johnson are absolutely the choir when it comes to that sermon. They understand the potential of Open Source. My goal with submitting this application is not to win, although that would be nice. My goal is to completely reframe the problem. I want them to see that their notion of PHR is trying to force people to move against the current. Facebook and Twitter applications, whatever else you want to say about them… are “with” the current. People are there, using those systems, that is where the action is. We need to bring the behavior changing healthcare innovations to the people, not the the people to the innovations. This is a big paradigm shift, but it is at the heart of Open Source. Essentially I am a developer on one of the Health Design projects, and I have made a pretty signifigant problem into what Torvalds calls a “shallow bug”. The bug is “How do we get people to signup to use this stuff?” I have solved half of that problem, people are already signed up to use Twitter, they just have to use Twitter in a new way… as a PHR.

Eric Raymond experienced this kind of paradigm-shift from a contribution with his fetchmail project. I have quoted this before and I will quote it again:

The real turning point in the project was when Harry Hochheiser sent me his scratch code for forwarding mail to the client machine’s SMTP port. I realized almost immediately that a reliable implementation of this feature would make all the other delivery modes next to obsolete.

For many weeks I had been tweaking fetchmail rather incrementally while feeling like the interface design was serviceable but grubby – inelegant and with too many exiguous options hanging out all over. The options to dump fetched mail to a mailbox file or standard output particularly bothered me, but I couldn’t figure out why.

What I saw when I thought about SMTP forwarding was that popclient had been trying to do too many things. It had been designed to be both a mail transport agent (MTA) and a local delivery agent (MDA). With SMTP forwarding, it could get out of the MDA business and be a pure MTA, handing off mail to other programs for local delivery just as sendmail does.

Why mess with all the complexity of configuring a mail delivery agent or setting up lock-and-append on a mailbox when port 25 is almost guaranteed to be there on any platform with TCP/IP support in the first place? Especially when this means retrieved mail is guaranteed to look like normal sender-initiated SMTP mail, which is really what we want anyway.

There are several lessons here. First, this SMTP-forwarding idea was the biggest single payoff I got from consciously trying to emulate Linus’ methods. A user gave me this terrific idea – all I had to do was understand the implications.

underline mine.

I really think the toleven.org Twitter-centric design is fundamentally more effective than the whole Common Platform effort. While I think both the Common Framework, and its top competitor the Indivo X modular architecture, have some value, they are fundamentally fighting a losing fight, trying to turn the masses into using PHR systems to log data. Forcing each application developer to write code to a separate API which does exactly the same thing in a different way is a non-starter. The only time that happens is when developers have a big motivation. An API is only useful when it has users behind it, and lets be honest, HealthVault and Google Health do not have users. Neither do Indivo X (which is still alpha/beta) or any implementation of the Common Platform. The only PHR systems that actually have any users are the MyHealtheVet application from the VA and the Kaiser PHR. Both of those applications are gateways into deep connection into those respective integrated healthcare delivery systems, something Google Health and HealthVault are not (although they might be someday soon.)

My grandfather once advised me “Never play a man at his own game”. I have taken that to heart. I now live by a modified form of that advice:

If I am failing and cannot see why: change the game or change the rules.

That is why I work with Open Source. It allows me to change the rules. I want to thank Robert Wood Johnson for their commitment to Open Source. The information that their project released made the application that I built for my friend more capable. It allowed me to flesh out the design and prevented me from building a special purpose application. Thanks to Michael Botsko for making a good jQuery Form builder. People like him build tools that let people like me try and make a difference.

-FT

Why I am supporting my father for congress

My father, Clayton Trotter, is running for congress in San Antonio, T.X.

He has won the Republican Nomination against incumbent Democrat Gonzalez. He has the support of the local Tea Party.

My father is a true conservative both socially and fiscally. A federalist in the tradition of Ron Paul. My personal opinions often go against my father. Like the majority of Americans I tend to be financially conservative but socially liberal.

I doubt the rest of my immediate or extended family will be following my lead. They do not support my fathers complete conservative bent. They seemed shocked to learn that I would be supporting my father. I am also very close to many liberal friends who also might be baffled by my decision. How could I support my father when we diverge on so many issues?

The answer is simple. My father, whatever is political stance, is far more qualified to represent San Antonio and Texas in the United States Congress. It is not because he is a legal scholar of the first rank, though he is, and it not because of his conservative politics (which I can assure you are sincere.)

I am supporting him because he knows the price of war. My brother John Trotter, (Byron to his family) was killed in Iraq during Fallujah II while fighting in nearby Ramadi.

Losing him broke my heart. It broke my fathers heart. It devastated my family.

I will support my fathers campaign to run for congress because his broken heart qualifies him to decide whether the United States should go to war. His broken heart qualifies him to monitor and approve defense spending. My father is qualified to prevent a defense spending program that allowed defense contractors to make billions, even as national guardsman were self armoring vehicles in Iraq. I believe that he will read those bills a little more carefully, that he will pay closer attention when generals and admirals testify, and he will work harder than the thousands of congressmen who have no concept of the real consequences of even their smallest decisions. I know that he will do this in peacetime as well as during war, so that our soldiers, sailors, marines and airmen have what they need before they are sent to fight for us. I know that he will not tolerate the Washington bullshit that puts our service members at risk. I know that he will not put politics, even Republican politics, before the military. I know that he would happily give up his political career to save the life of even one soldier; someone-else’s Byron.

Our minor political differences pale in comparison to this single issue.

My father did not know it, but he prompted me to write this post by leaving the following message on my google voice account. He decided to visit my brothers grave at Arlington national cemetery today (the anniversary of 9/11) on his visit to Washington. While he was there he left this message for me. I am publishing this without his permission, because I want to give you insight into the man he truly is. I want you to see him as I see him, formidable, but also deeply vulnerable. His own words are the deepest endorsement I can make for him. I hope he does not mind too much.

Clayton Trotter 9-11 Call to Fred Trotter

Like all politicians, he needs contributions to win, please consider helping him.

Thanks,

-FT

Personal Science

Recently I have been approached by a clinic in Austin that operates under the assumption that there is a causal relationship between childhood vaccinations and autism.

This will not the first foray into the thick of bio-ethical debates. I have, in the past, advised both planned parenthood and catholic clinics on how to use open source healthcare software.

My policy for organizations like this is simple: I almost always help them. My software or software ideas can improve the experience of patients at any clinic, even if that clinic is taking a position on an ethical issue that I am unsure about or against. Most importantly there is nothing that I can do to change the position of the clinics in question, one way or another.

I hope that in the end, open source software will help to resolve some of these ethical debates by providing a cheaper means to get better quality data. While my opinions cannot change policy better data can.

So will I help this clinic? Probably. Will I allow this clinic to advertise my help as any kind of endorsement? Definitely not. Which is basically the same position I take on any reasonably complex bioethical issue where I can see both sides of an issue. Of course many in my community would say that members of the anti-vaccine community do not deserve this kind of benefit of the doubt.

Before climate-gate I might have agreed. But now I am much more sympathetic to arguments that run contrary to modern scientific consensus. I fell very betrayed that centrally referenced climate data was fudged by respected scientist in order to support a very specific conclusion. Because of the pharmaceutical corporate interest I am afraid that vaccine safety data might have been similarly fudged.

It is my hope that providing a clinic with a dramatically different agenda than the main stream medical community with cheap and effective tools to do advanced data gathering and analysis that I might provide them with a kind of truth-over-pressure. If vaccines can cause autism, then they should be able to generate some reproducible data that shows that. If vaccines do not cause autism then by giving this clinic better data tools I hope that I might be able to create a kind ideological implosion within the organization. I hope that I am not enabling an organization that is torturing kids with invasive, traumatizing procedures for nothing. But unfortunately I am not in a position to make that determination.

I hope, truly, that I am right to take this approach. I hope that the assumption that transparent code plus transparent data can create pressure to find the truth for other difficult issues is right. It feels like, more and more like I am betting more than my career on this idea of open source software in healthcare… I am betting my conscience too.

I would like your comments about my approach generally and about this situation specifically.

VistA modernization must use MUMPS

Once more, the debate about “whether” to migrate VistA from MUMPS has come up again in main stream press.

This always makes me sad because it shows just how fundamentally ignorant people are of what VistA is.

So lets get something straight. If you are not using MUMPS, in some form or fashion, it is not VistA. It is a new software project. New Software projects to develop comprehensive EHR solutions, do not work. Ever. That is called “Big Bang Development” and it is utterly doomed to fail.

In order to create an EHR system you have to grow one. You start with a system that is not comprehensive, you use it anyway, and then it grows into something that is a comprehensive EHR system. You cannot take a comprehensive EHR and assume that you can re-write it, from scratch in another language and that it will work. That is just unfathomable.

This has been tried, several times, and consistently failed.

So the reason that it is not “an option” is that it will fail. Thinking about it as an option is simply madness.

It is very like saying, “We need the Linux Kernel to improve, so we will recode it in Java.. not enough people are trained in low-level C programming” The folly and hubris should seem clearer now perhaps?

You might try drastically reinventing what MUMPS is, like ClearHealth, but you cannot simply “get away from it”.

Another example might be “New York has proven that the street + subway system is effective, the city planners of Venice should adopt that in place of the canal system that they currently use. Obviously New York shows that these modern features are capable of moving far more people…” The reason Venice does not consider a subway system is that it -cannot- work. The city planners there know that, so they never try.

It is ironic that people who say “we should move away from MUMPS” consistently consider those of us who actually understand the architecture and design of the system, and insist that we continue with MUMPS as a kind of “particularly obstinate political faction”, from the link above:

“Is MUMPS the right entity? I think the obvious answer is ‘no,’” Meagher said. “It just happens to have a bunch of very committed people who want to stay in that environment.”

When an engineer says “I can think of no way to achieve near light speeds in our lifetime”, he is not taking an obstinate political position. It is not “pro-light-speed” vs “against-light-speed”. The engineer is taking a position based on what he understands to be achievable.

When I say “VistA must stay with MUMPS”, I do so based on the only relevant evidence’ efforts to move away from MUMPS have consistently, and expensively, failed. I do not like MUMPS at all, but I have a pretty solid understanding of software engineering and you simply do not simply migrate to a new language for a codebase as large as this.

-FT

Prior Art for the BillingNetwork Patent Troll

I am saddened that the supreme court decided not to address the software patent problem with Bilski. They had an opportunity to abolish or at least reign-in software patents, which are an inherently bad idea. Instead they undid what little progress had been made in the Bilski precedent.

I think others have already more eloquently covered how the Open Source community lost in the final Bilski ruling.

Patents are damaging to Open Source healthcare information technology, and by proxy healthcare itself.  I believe it is time to tell you a story that I have been sitting on for more than 5 years, that serves as an excellent case in point. IANAL So understand that this is told from the perspective of a software developer, who, out of necessity has become familiar with patent, trademark and copyright law. As legal advise, this blog post is worth exactly what you are paying for it.

What must I, as an Open Source software developer, do to avoid being sued for patent infringement? The only semblance of protection against being sued is to make my defense so rock-solid that someone who might consider suing me would be worried that I could successfully counter-sue for anti-competitive business practices. So what are the defenses against patent infringement? I pulled these from my own experience, and articles like two most common defenses against patent infringement.

  • Non-infringement: My code does not implement your patented method
  • Your Patent expired: The time on your patent has already run out before I started making money from my selling or supporting my software
  • I have patents too: and if I am infringing yours, then you are infringing mine.
  • Have shallow pockets: I am relatively poor, that this lawsuit is pointless, you will never get any “real” money from me or anyone else I associate with.
  • Invalid Patent: Your patent is invalid because
    • Prior Art existed: sufficient descriptions, or actual code already implemented or described your patented method before your patent was granted (this one works for me, the developer because I am able to search through sources of prior art myself)
    • Your patent was obvious: although no specific prior art existed that identically replicated your patented technique, your method was obvious based on what was published
    • Your patent process was flawed: You did something that you should not have during the patent process. (not helpful to me as a software developer since it focuses on a particular given patent)
    • Not patentable: Your patent covers something that is not suitable for patenting (also not helpful to me as a developer)

Obviously non-infringement is the best option, but here is the trick: If I do a search for patents that apply to my area of expertise, and I am later to found to infringe on a patent that I read, I might be liable for “willful infringement” which carries stiff penalties. So generally I cannot search for what is actually patented. This makes it somewhat difficult to avoid infringement. You only know when you are infringing because someone contacts you and says “you are infringing”.  This what Open Source developers refer to as the patent minefield problem. The only way to avoid the minefield is to merely replicate software techniques that for which you can find implementations that are more than twenty years old. Finding prior art is not enough, because you cannot know the dates of particular patents without searching for them. So basically, Open Source projects can safely implement any software technique that was in common use twenty years ago. That kind of sucks, because you cannot even improve them, because those improvements might be patented, you can only re-implement them. So the only way for an Open Source developer, like myself, to entirely avoid patent litigation is to stop innovating.

I hope that my readers, irrespective of their perspective on software patents, are already uncomfortable. This is not what the patent system was intended to accomplish. Just because my chosen method of profiting from my innovations is not the same as proprietary/patenting software companies, does not make my work less innovative or valuable in any way. But there is no way for me to make my “innovation process” safe from patent infringement lawsuits.

What options do I as an Open Source developer have? Basically, if I am actually doing something new and different, and I want to release it as Open Source, I just have to release the code and then pray that it is either A. Not a patented technique at all or that B. If it is patented, I can defend myself.

So it is really important to note that there is nothing, absolutely zero, that I could have done -in advance- to avoid implementing someone else’s patented technology.

The Shakedown

Several years ago, FreeB, an Open Source billing engine that I wrote was attacked by a patent troll. When I get the time I will publish the letters I got to chilling effects but for now I will just include snippets. First, I should clear up some confusion. I was contacted by BillingNetwork because I was the owner of the Freemed.org domain name. I was developing FreeB, the medical billing module that Freemed would briefly use, but Jeff Buchbinder was the lead developer of the Freemed project and I was merely a contributor. So I really had two hats, one as a Freemed user and contributor, and one as the primary developer of the billing module, FreeB, that any EHR could (and did) use to enable medical billing.

BillingNetwork is what I would consider a Patent Troll. My definition of that term is any company that makes vastly more money by suing from its patents, than it does from actually selling any product that implements the patented technology. Making good software, that does well in a competitive market is not easy. Most of the software that I have written will never be subject to market forces. Usually this is because the people who hire me to extend or create Open Source healthcare software do so without having a completely reliable business strategy. They just realize that a lack of software is impairing their entrepreneurial aspirations and hire me to fix that problem. Some of my software projects have been tremendously successful in the market, but most of them do not get off the ground from a business perspective, this is true of every software development company or individual that I know. When a software project finally is useful in the market it is usually because there we were several earlier iterations of the idea that were abandoned. Going to market with half-baked software inevitably dooms a software company to market irrelevance.

Patent Trolls, even ones who “market” their own products are usually totally irrelevant in the marketplace. They have not put in the work needed to make their patented idea into a “workable” innovation. The irony is that making software “workable” often means that you have to completely abandon your original design. What actually works in the software market is often dramatically different than any starting software designs. When a Patent Troll patents a software design, without having the ability or often even the intention to turn the design into a working product, they very often patent a very poor design. These patents are markedly different from patents from large companies, like IBM, Microsoft or Google, that create software patents as a side effect, and as side business, from making process of creating fully working products.

BillingNetwork just settled with Athenahealth, a company which has about 1000 times more market relevance than BillingNetwork ever will. Their patented design, as you will see below, is not a particularly good design. They qualify as a Patent Troll in my book.

Here is the relevant text from the letter that Billing Network sent me more than 5 years ago:

We are not charging you with infringement of the patent, but are bringing the patent to your attention so that you may consider entering into a .license agreement with BNC.

(The underlines are mine.) This is really interesting. Billing Network was offering to license me this patent without ever implying that I actually infringed the technology. If Billing Network was actually an “innovator” it was in the field of patent trolling. They would not only contact web-based EHR/PM vendors with letter like this, but they would also send letter to the customers of web-based EHR vendors! Even in these letters they would not actually say that the software actually infringed, only that it might be. If someone owns a patent, and they say to another company “hey you are infringing my patent” then they have to back that up in court. If the patent holder says it publicly while knowing (or should have known) that the claim of infringement was not true, they might be guilty of libel and slander against their target. But if the patent owner says you “might” be infringing, then they have no obligations, and if they say that directly to the users of software, rather than the developers who might be able to actually evaluate that claim, then they can earn “licensing” money from the FUD they create around their patent, and what it covers, without ever having to go to court and prove anything. This is important, because it allows BillingNetwork and other Patent Trolls to use a patent like a shotgun generally against any company in a given field (in this case web-based EHR that does medical billing), rather than merely those companies which actually infringe the patented methods!!

Even if you are against software patents, like I am, you have to marvel at the evil genius at work here!!

At this point I made the mistake of actually calling them and emailing them, as they requested, and explaining that I could not license the patent because that does not work for Open Source. At this time I foolishly assumed that contacting them was better than reading the patent to see if the patented technology was anything like what I had worked on. But this was foolish, once they have said “hey take a look at this patent you might be infringing” there was probably no way that I could have been held as a willing infringer by merely reading the patent.

In my communication to them, I included the link project pages for FreeB and Freemed which of course allowed for full download of the sourcecode in question. The letter that I got back was so contorted and confusing that I realized that I needed legal help, and so I contacted the FSF and EFF and they put me in touch with the Public Patent Foundation. Who helped me out from then on. They wrote a “please go away letter” for me, and after some back and forth, that was the end of it. Perhaps Billing Network sorted out that I although my billing software was in wide use, I was not making money on it. But for the present text I think it is important to show how belligerent they got, without ever actually implying that I infringed anything.

From the second letter:

We are eager to avoid a possible conflict and to resolve any legal issues amicably.
If you are interested in entering into license negotiations, we will have our intellectual property counsel forward proposed terms for a non-exclusive license. While we take our patent rights seriously, we are interested in resolving this matter quickly and believe that you will find our licensing terms to be quite reasonable.
As we indicated in our last letter, we are not charging you with infringement, but are merely offering you a non-exclusive license for the above identified patent.

From the third letter, after I foolishly talked to them:

We have reviewed your email to Dr. Krumholz, and it appears that your FreeB billing system may be covered by the ‘229 patent. Accordingly, you need a license from BNC under the ‘229 patent to continue using the system.

Note the powerful “Accordingly”, you ‘may’ infringe therefore you ‘need’ to get a license. Legal marketing at its best!!

The last letter is the part of the response to the PubPat letter… Specifically this is the part where we said that FreeMED and FreeB do not infringe on the patent in question.

Your letter indicates that you do not believe that the FreeMED system includes several elements of the claims of the ‘229 patent. However, you have included no documentation to support this assertion. We are reluctant to rely upon unsupported assertions by the attorney representing a potential licensee for obvious reasons. Accordingly, we request that you provide us with any documentation that supports your assertion.

Finally, we restate that we believe that a license agreement would be in the best interests of both parties…

(again underlines mine). Remember, I had provided them with a link to the sourcecode in question during our initial discussion. This is a critical issue. BillingNetwork viewed me providing full access to the sourcecode as “no documentation”. In short, from Patent Troll’s perspective, they needed to be given a guided tour of sourcecode that they already had access to, in order to accept our assertion that we were not infringing on their patent. Think about this from a business expense perspective, it is not enough for me to have read the BillingNetwork patent, and be sure that my software works differently, I have to determine which parts of my code -prove– my non-infringement, and then give the Patent Troll a guided tour.

Next we will actually talk about whether I infringed the patent. But for now lets take a stock of where we are:

  • Jeff and I (and Open Source software developers generally) have no way to protect selves from this type attack. We could not review the patents the danger of becoming “willful infringers” (the patent minefield problem).
  • The patent troll attacked us with the expectation that it was cheaper for us to pay to license the patent rather than even figure out if we infringed the patent. So they are not making money from their “innovation”, but rather the simple fact of having a patent for one design of the tens of thousands of designs that might work. Their patented design, is like an “idea tax” on the process of implementing any of the other designs.
  • Thankfully Pubpat stepped forward to help us, but if they had not, we would have been on the hook for hiring lawyers to defend us. Without PubPat, I had no good choices: Go out of business hiring lawyers, or defend myself poorly. Did I mention that Pubpat is an organization that you should be supporting?
  • The Patent Troll viewed it as our responsibility to prove that our openly published code did not infringe rather than their responsibility to look at the code and prove that it did infringe. This is the “guide tour” problem.

This is why this a “Troll”. The whole word picture here is that of a troll who charges a “toll” for a bridge. A bridge the Troll did not build. This is why software patents, no matter what you think of them, stifle Open Source innovation. So far we have not discussed if the patent is valid or if we actually infringed, but the expenses that I incurred and the time that I spent dealing with this prevented me from doing… that’s right folks… actually improving my software. Practically speaking this halted my development activity for probably three months in total, at different times.

Now what if I could show, conclusively, that either A: we did not infringe the patent, or B: to the degree that we did “infringe” we did so based on obvious prior art? That is what I will attempt to show next. But at this point I want you to see that even without considering actual infringement, BillingNetwork has a method to shake down any user of my Open Source project using carefully crafted FUD, and that they attempted to do this entirely independently of whether my code infringed or not. Because they have a patent on one design for the type of software that I develop, they have a free ticket to go after my entire market place, without regard for the actual content of the patent in question… This has nothing to do with “protecting” an innovation that BillingNetwork had, its all about using patents to legally extort the free market. I cannot help but quote that Wikipedia article on Extortion:

Refraining from doing harm is sometimes euphemistically called protection

How awesome is that quote?

Did we infringe BillingNetwork Patent 6374229?

note: I would recommend that if you develop healthcare software, Open Source or otherwise, you stop reading now. By reading this, you might become a willful infringer of the Billing Network patent. Although I do not think I give enough detail here to make you a willing infringer, the link to the patent certainly would. Be careful.

That question has two answers. One for my project, FreeB,  and one for Jeff’s project Freemed. But first lets look at the patent in question.

There are seven claims made in the patent:

Claims 2-5 are actually refinements of the first claim, that begins:

An integrated internet facilitated billing, data processing, and communication system comprising:a database server and a home page of a website

The sixth and seventh claims begin:

An integrated internet facilitated billing, data processing, and communication system comprising:a database server and a direct access server electronically interconnected between said database server and a plurality of direct access subscribers each of which gain secure thin client access into said direct access server via a modem and an internet service provider (ISP)

An internet based computer system for billing, data processing and communication for and between subscribers and said system, one type of subscriber being of the browser-based type and another type of subscriber being of the direct access type, said system comprising:

So the version of FreeB in question did not infringe. Why? There was no database, and there was no web interface. The first version of FreeB, and the only one originally written by me (the second version was originally built by the ClearHealth team) and the only one that existed during this letter writing, was designed as nothing more than a data pipe. You connected one end of the pipe into an EHR, and out the other side came properly formatted medical bills in paper and EDI formats. It was a software module and had no direct user interface at all, you configured it by editing text files. It remembered nothing from one run to the next. It was not a great design, but it certainly did not infringe the first five claims here. The claims are all mixes of “browser” and “database” requirements, and FreeB did none of that.

Of course, you could combine FreeB with another system, that could theoretically infringe the patent. In fact you could argue that FreeMED, which was an early attempt at creating a web-based EHR that could do billing might have infringed. But there is no way that FreeB itself, in the version that BillingNetwork said “accordingly” needed a patent license, could have infringed the patent. The sourcecode that was available to BillingNetwork as well as the developer documentation on FreeB available at the time made this perfectly clear. BillingNetworks implication that that FreeB “might” infringe their patent was based only on the fact that FreeB was software in the same field of endeavor (medical billing) as their patented technology.

But what about FreeMED or the combination of FreeMED and FreeB?

There is nothing in the patented claims that even early versions of FreeMED could not be made to do with mere configuration. Many of the things claimed in the patent were done in FreeMED out of the box, but then most of the things written in the patent are done by every web-based medical billing system on the planet. Of course, this is true of FreeMED today, as well as the far more popular ClearHealth and OpenEMR projects, as well as probably half a dozen lesser known web-based Open Source EHR projects that either support billing today or want to in the future.

But FreeMED is unique. As far as I know, it is the oldest Open Source web-based EHR/PM system. In fact, it is so old, that if it did infringe on the BillingNetwork patent, it has been infringing even before the patent was issued.

The date for filing of patent #6374229 is Oct 20, 1999

But FreeMED was already a working codebase at that time. I inherited the FreeMED.org domain name from other owners (sorry it is down right now… still working through a server migration…) but thankfully at the history of the site, and therefore the project itself can be found at the Internet Archive. Let me take you on a quick tour. The oldest version of FreeMED.org that has a snapshot is Nov 25, 1999 at that time, there was already a demo running. More importantly we find that the site itself has downloads of the FreeMED project starting as early as 05/27/1999 the latest of these is from 23-Jul-1999.

These links actually allow you to download FreeMED as it existed, at that time, three months before the Billing Network Patent was filed. But most importantly, are two files in that download. The CHANGELOG and TODO files. No matter how I might disagree with some of Jeff’s software design decisions, I have to admit that the man was a stickler for standard Open Source project conventions and that is paying off.

From the changelog take a look at the entry “19990709 –” which states in part:

a added structures for payment records (for checks, etc) to the admin
module. stupid db reinit — you go squish now.
a added prelim payment records module — working on addition function
now.
a added billing function from main menu with billing_functions module.
n these functions are not ready for prime-time yet. please do not wail
on them then complain that they don’t work 😉 -jeff

Even more relevant is the following section from the TODO file

19990708 ——————————————————-
* implement payments and billing databases, with structures
….
* insurance payments related dbs and tie-ins, possibly with API
revisions

This is an indication of where Jeff was going with the billing system. All of this either documented or actually coded at least three months before the BillingNetwork patent was filled.

I submit that by running a version of FreeMED that contained only what was coded or planned as of 10-1999, and mere configuration of Apache and the FreeMED configuration file, using the versions available in 1999 (i.e. redhat 6.0) you can easily implement every aspect of the BillingNetwork claims, or designs that are largely equivalent (like using php’s direct mysql connection rather than ODBC), all using mere configuration changes. Moreover, you could find using other php projects (like postnuke) that were popular at the time, examples of all the configuration changes needed to make the modes of operation described in the claims work.

I would submit that anything that Jeff was reading at the time, (i.e. the php CMS that he would use for other purposes for instance) would serve as a basis for what should be considered obvious art at the time. Essentially the BillingNetwork patent covers a particular configuration for a web-based billing system. Not even the most intelligent configuration given the software that was available at the time. Jeff’s default configuration was actually a better design than the configuration required to fully emulate the Billing Network patent. This goes back to the habit of Patent Trolls in patenting half-baked technology. No one could run a medical billing practice management service by merely correctly implementing the patent, it would not actually work. But broken technology does not stop a Patent Troll from profiting from a patent, and Billing Network is a perfect example of this.

If my readers demand it (leave comments) I will be happy to give a blow by blow of the simple configuration changes that would have allowed the FreeMED “stack” to emulate exactly the design put forward in the patent. But anyone who understands the basics of the php/apache/mysql/linux stack know that 98% percent of what the patents cover are automatically provided in the stack itself. This was already true in 1999, which was php version 3. Moreover I can list about ten ways that such a configuration is not actually the “right way to do it” but then again, no one in the patent office cares about what actually constitutes best practices or does not when they hand out a patent like this. Sadly amateur design is not what is in question… just “originality” as compared not with what people were doing publicly in the open source community at the time, but with regards to what has already been patented. I think now the patent office is a little better about seeking sources of prior art form the Open Source community, but not by much.

So does FreeMED serve as Prior Art that invalidates the BillingNetwork patent? I think so, but it does not really matter. What is important is that this gives a very specific path for Open Source projects to be immune from attack by this particular Patent Troll. It means that all of the plans that FreeMed made are a safe harbor. As long as we do it in the way that FreeMED was  there is no way that the BillingNetwork “protection” can impact you.

Defensive Patents

Several people in our community have started to consider defensive patents. There seem to be two approaches to this issue. Patent Pools and more recently Defensive Patent Licensing.

Both of these rely on some basic assumptions. If Open Source projects will apply for and get patents for the designs that they use, then they will be able to for the patent office to acknowledge that the methods they use are “innovative”. You might have the patent office reject parts of your patent because they were “obvious”. Showing that your merely implement your own patented method or something that is “obvious”, is one of the few novel defenses against someone who is is attacking with patents but does not have any real business of their own. The pooling method is also a good idea for defense against big businesses with patents. When several projects have patents, and are willing to pool them against people who sue for patent infringement. The “sue you back” tactic would only work against companies with software patents who are actually in business. But “sue you back” does help to defend the community against one kind of patent attack. But “sue you back” is ineffective against patent trolls, who very often have no business at all, so they do not “infringe” on any ideas that might be an Open Source Patent Pool, because they are not “doing” anything at all. This is the reason why I think “We use our own patented designs or obvious designs” might be a good avenue to pursue.

It is deeply frustrating that the Open Source community would need to patent ideas in order to ensure that they could be freely available without charge to users and developers. However, at this point I am simply at a lose as to how to proceed. I am considering pursuing defensive patent strategies like this, and I know that other are too.

Patents frustrate Open Source developers

Hope this helps people to understand why we resent software patents in Open Source. At every turn in this story, my time was taken up, not defending a legitimate claim of patent infringement, but simply jumping through the hoops that some group who had a “related” patent thought I owed them. As far as I can tell, from a non-lawyers understanding of patent law combined with a working knowledge of building web applications, I was utterly, extremely, completely, excessively, non-trivially and enthusiastically -not- infringing the Billing Network patent. But Billing Network made it abundantly clear, even after we told them that I was not infringing, that I should still pay them a toll, because that what a Troll will always say to anyone who wants it to go away. I guess it could be worse; they could have been threatening to go after my knee-caps with a baseball bat.

Joking aside…

If original, innovative Open Source health information software is in the best interests of society, then software patents, as currently implemented  are a serious problem.

-FT

Update 12-01-10: It turns out that someone decided to go toe to toe with BillingNetwork and apparently won. HorizonMIS announced dismissal of a Patent Infringement suit brought against it by BillingNetwork. Bob Bortz called this to my attention and offered to share his experiences with others attacked by BillingNetwork, you should be able to get a hold of him through the contact information at the bottom of the press release.