In McKesson Technologies, Inc. v. Epic Systems Corp., No. 2010-1291, 2011 WL 2173401 (Fed. Cir. May 26, 2011), a three judge panel consisting of Newman, Bryson and Linn affirmed a district court decision of non-infringement based on a divided infringement analysis. The method claims at issue were directed to a process of automatically and electronically communicating between at least one health-care provider and a plurality of patients serviced by the health-care provider.
Both McKesson and Epic agreed on appeal that no single party performed every step of the asserted method claims. McKesson argued, however, that the special nature of the doctor-patient relationship is something more than a mere arms length relationship and that the patients actions should be attributable to the health care provider, because “[t]he phrase ‘doctor’s orders’ says it all” and because of the existence of a doctor-patient privilege. The Federal Circuit did not agree, stating that the “doctor-patient relationship does not by itself give rise to an agency relationship or impose on patients a contractual obligation such that the voluntary actions of patients can be said to represent the vicarious actions of their doctors.”
Because McKesson was unable to attribute the performance of all the steps of the asserted method claims to a single party, the Federal Circuit affirmed the finding of noninfringement.
The Federal Circuit has since decided to hear the appeal en banc and has vacated the panel's April 12, 2011 opinion.