The US. Supreme Court decided today the high-stakes software patent case Bilski v. Kappos, No. 08-964, June 28, 2010, affirming the Federal Circuit’s judgment. (find our previous post here) In Bilski, the Federal Circuit had rejected patent claims involving a method of hedging risks in commodities trading. The questions decided by the Court were: (1) whether the Federal Circuit erred by creating the so-called “machine or transformation” test, which requires a process to be tied to a particular machine or apparatus, or transform an article into a different state or thing, in order to be patentable subject matter; and (2) whether the machine or transformation test contradicts Congressional intent (pursuant to 35 U.S.C. 273) to allow for business methods to be patented. The Court held that business methods are eligible subject matter under the Patent Act but declined to accept the Federal Circuit’s machine-transformation test as the exclusive test for the Section 101 determination. Following are excerpts from the majority opinion: Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act’s text. The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. The Court, therefore, need not define further what constitutes a patentable “process,” beyond pointing to the definition of that term provided in §100(b) and looking to the guideposts in Benson, Flook, and Diehr. And nothing in today’s opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past. See, e.g., State Street, 149 F. 3d, at 1373; AT&T Corp., 172 F. 3d, at 1357. It may be that the Court of Appeals thought it needed to make the machine-or-transformation test exclusive precisely because its case law had not adequately identified less extreme means of restricting business method patents, including (but not limited to) application of our opinions in Benson, Flook, and Diehr. In disapproving an exclusive machine-or-transformation test, we by no means foreclose the Federal Circuit’s development of other limiting criteria that further the purposes of the Patent Act and are not inconsistent with its text. To read the opinion, click here. Technorati Tags: arbitration, ADR, law

Last week, the U.S. Supreme issued its decision on Granite Rock v. Teamsters, No. 08-1214 , June 24, 2010. Justice Thomas wrote the majority opinion, joined by Chief Justice Roberts, Justices Scalia, Kennedy, Ginsburg, Breyer, and Alito. Justices Stevens and Sotomayor concurred in part and dissented in part. In Granite, the responder is a local union (Local) supported by its parent international (IBT). The petitioner is Granite Rock (Granite), employer of some of Local’s members. The case is about Granite’s claims against Local and IBT for economic damages arising out of a strike. The parties had reached a collective bargaining agreement (CBA), however, they disagreed about the date the CBA was formed and who should decide that question. Granite contended that the agreement was ratified on July 2 (containing non-strike and arbitration clauses) while Local argued that it was on August 22. The Court held that a district court, not an arbitrator, should decide the CBA ratification date. The court noted that “[t]he CBA requires arbitration of disputes that ‘arise under’ the agreement. The parties’ ratification-date dispute does not clearly fit that description.” Technorati Tags: law, ADR, arbitration

By Holly Hayes The May/June edition of the Physician Executive Journal (PEJ) provides a step-by-step approach for reporting adverse events to patients. The seven-step approach is based on principles used in the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health. A summary of each of the seven steps recommended include: Step 1: Information gathering Prior to any meeting with the patient or family, it’s critical to gather as much information about the serious event as possible. A thorough investigation and review of the incident should be conducted in collaboration with risk management. Step 2: Identify stakeholders The next step is to identify those individuals who will participate in the meeting. We want to get the right people to the table. It is likely that there will be two or three members of the family present at the meeting, including the patient. The number of hospital representatives at the meeting should not significantly exceed the patient and his/her family. This may create the perception of a power differential and possibly be perceived as “bully” tactics. The meeting should generally not include legal representation from the patient and his/her family because the discussion is designed to be informational in nature. In addition, cases that meet the definition of a serious event do not necessarily meet the legal definition of malpractice. Step 3: Communicating the goal The meeting should start with introductions by all of the participants and the role and responsibilities of the staff… (and) should state the purpose of the meeting: “Our mission is to provide the highest quality of care to all of our patients. We take this very seriously. If we have an outcome that is not optimal, then we look very carefully at the care that we provided, and ask ourselves if we could have done better. In this case, there was a complication during the hospitalization. We looked into our processes with a multidisciplinary team. We believe that there may have been measures we could have taken to maximize the chances of success. When we believe this may be the case, we report these events to the state and meet with the family to discuss any mutual concerns.” Step 4: Active listening After the problem has been identified, the next step is to ascertain the self-interests or concerns of the patient and/or family. The Chief Medical Officer/Vice President of Medical Affairs (CMO/VPMA) should express a sincere interest in wanting to hear about their perceptions of the care rendered. This will require active listening. The family may be angry, confused, or sad. This is the opportunity for them to express their concerns and vent some of their frustrations. This may be difficult for the physician to hear, but all of the staff must be active listeners and demonstrate empathy and concern for the patient’s self-interests. The initial goal is for the family to build confidence in those around the table. The CMO/VPMA must create a “safe zone” for the family that allows them to express themselves without reprisal. Step 5: Seeking agreement At this stage, the CMO/VPMA should start to elicit areas of agreement. The family should be asked if there were positive experiences about the care rendered. Were there individuals who gave them confidence and helped anchor them during a difficult time? Agreements about the positive aspects of care should be reviewed and reinforced. The family should be asked if there were aspects about the care that they disagreed with, or found less than optimal. Concerns about the quality of care may be categorized into several areas based on agreements and disagreements. Step 6: Finding solutions The CMO/VPMA should ask the family how the care team could have done this better. Having the patient participate in the corrective action plan will add value and generate buy-in to any solutions formed. Of course, the solutions must be feasible. Step 7: Giving and getting The parties should reach agreement on the proposed corrective action items. In many ways, this is a “give” and “get” process. For the family, there was communication of information, the commitment by the hospital and staff to improve their performance, and an apology that the care delivered did not meet their expectations. For the hospital, the hospital is able to “get” conflict resolution, reduce risk for litigation, and restore trust in their partnership with the community and the families. Seeking out these mutual gain options is important in order to redefine success. The interests and motives should not only be aligned, but the family’s participation in the process will add value to the solutions proposed. If the patient and family view the process positively, then they will tend to embrace new achievements favorably and, most importantly, as fair. The process by which a solution is found is important for both the family and the CMO/VPMA. Each will have to justify any alignment in self-interest and “give-and-take” with their respective constituencies. For more information on the Harvard Program for Health Care Negotiation and Conflict Resolution, see here. We welcome your comments on this approach to communicating with patients about adverse events. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.

The Richmond Times reports the latest on the tobacco settlement agreement: Financially pressed states might have to return $1.1 billion to Big Tobacco this year, if a review finds the states aren’t trying hard enough to keep a 12-year-old legal settlement from hurting the companies too much. This summer, states and the nation’s Big Three tobacco firms will begin arbitrating a dispute over 2003 payments made under the settlement, the companies have disclosed in financial filings with the U.S. Securities and Exchange Commission. Sums ranging from $705 million to $1.1 billion for each of the subsequent years also are headed for arbitration. And that’s on top of the fact that the money actually paid to the states has run as much as $2.2 billion a year less than the sums touted when the settlement was signed, a Richmond Times-Dispatch review found. At the heart of the arbitration dispute is the roughly 54 cents a pack the settlement currently costs Big Tobacco. The money is intended to repay states for the costs of caring for sick and dying smokers over the years — but only a few states use the money for that, or for the tobacco cessation and prevention programs public-health advocates hoped the settlement would fund. Read the rest of the article here. Also, find a database with figures on how much each state received and how they spent the money here. Technorati Tags: arbitration, ADR, law