Legality of software restrictions

[ProfessorEd]

Respironics and Resmed have apparently told their DME firms not to sell the software to the general public.

A general principal of anti-tust law is that such actions where a manufacturers tells retailers not to sell to certan people are a "restraint of trade" and are illegal.

However, there may be exceptions for case such as this where it might be argued the public would be endangered by having access to more informaiton or the ability to change settings.

Is anyone up to date on antitrust law to know this area or have an informed opinion?

The anti-competitive effect of this policy is obvious since this restriction can created additional business for doctors or DME firms (if they charge a fee for reading the cards).

there may be a possible class action lawsuit here where the damages might be large since health is arguable being endanagered by not having needed information on whether our treatment is working. I suspect if the law is on our side (or even arguably on our side) that the firms would chose to settle and a class action lawyer would get a good fee out of it (and hence would be willing to take the case on for a contingency only fee) and thi would make the software available again, with possibly a small cash settlement to those who were hurt (more likely a coupon for a discount).

Since it is likely the equipment firms tried to remove the software only to keep the doctors or DME firms happy (who determine which manufacturers get the business in most cases), I supsect they would concede quickly and explain to those that wanted software access restricted (DME firms probably) that they had not legal choice.

By not having software available machiine manufactuers are at a competitive disadvantage with Puritan-Bennett (as long as they offer their software to the public). Also, there is somemoney to be made from software sales to the public (Obviously a disk and small manual is very cheap to make).

[ablong]

Way to go I hope you can get some help.

Allen

[JeffH]

Now that we live in Bushworld, the courts are ruling in big businesses favor more and more. Don't think you have much of a chance myself.

[billbolton]

A general principal of anti-tust law is that such actions where a manufacturers tells retailers not to sell to certan people are a "restraint of trade" and are illegal.

You'll need much stronger basis than just standing on that concept to have any chance of success.

There are a whole host of products which are only available to a specific classes of users and which do not qualify as a "restraint of trade".

There is are also particular restraints of long standing which often legally apply in the theraputic goods field

In any case, for software all a manufacturer has to do is alter their licence agreement to qualify the allowable licencees on some technical attribute basis and then a sale to anyone who doesn't meet the qualification would be illegal.

Remember that in the normal course of events you rarely get a chance to purchase outright ownership of software Intellectual Property per se, you usually only acquire a licence to use it.

Cheers,

Bill

[Guest]

So you went to the internet and looked up anti trust? If you want to quack like a lawyer you might get a law degree and also specialize in anti trust law. Your argument is similar to saying that requiring a prescription for antibiotics, is restraint of trade because the pharmacy, manufacturer, etc. requires a prescription. You are not even close to having a legiotimate argument, much less a strong one.

[Snoredog]

I wonder why it differs for OSA?

when you have hypertension they want you to check it and monitor your own blood pressure. You can buy a monitor nearly anywhere for under $20 even at a grocery store. You are to monitor your own condition, if pressure doesn't stabilize and/or climbs higher you are to track that info and see your doctor for possibly a medication change.

No script required for the device that monitors your BP.

Next, you have or don't have Diabetes. You don't need a script to buy a gluecose meter like a One-Touch or the supplies, it is all OTC. You check your own levels, adjust medication and if not keeping your condition under control you see your doctor.

With OSA therapy your DOCTORS want you blind. They want you totally blind to this therapy so they can control and dictate every possible aspect and milk every last dollar out of your wallet. They all get together when they feel threatened with their associations and if they don't get what they want they go through the good ole boy network at the FDA and make it regulated.

Law? When was the last time "the law" was on the peasant's side?

As for this software thing, it ain't going to happen. The only way I see anything happening there is some guy removing the SmartCard module and shipping it off to China for reverse engineering and duplication to a SD memory card where it dumps the data collected to an ascii file where you can read it off any text reader or spreadsheet.

If you figure Resmed shipped about 300k machines world-wide per year, Respironics ships probably about the same, that if a guy did clone that module they could sell probably a 100k of them over the lifetime of the machine. It wouldn't impede the machines function any, so I doubt there would be anything the FDA could do about it.

The problem with most software out there is it allows you to make changes to the machine or change the prescription. But the bottom line is Resmed, Respironics etc. don't see patients as customers. They only see doctors and DME's, and Sleep Labs as their customers.

I know if someone showed me a cloned device that plugged in in place of my SmartCard reader on my M series for under $200 that allowed me to retrieve my data from a SD card, I'd buy it.

I'm not any good at hardware or I'd do it myself. You know it can be done, Respironics runs around with their special SmartCard with the serial cable attachment to their laptop all the time.

[WearyOne]

Maybe I'm missing something, but what's all the fuss about the software and being able to change the prescription on the card with the software. I can change anything I want on the machine in the clinician/provider menu.

Am I missing something?!?

Pam

[Snoredog]

now that I look at it, I bet it is even easier than previously thought, the SmartCard module is removable from the machine, in fact the cheaper machines come without the module.

Removing 1 screw from the module you get a better look at the reader insides, not much too it. You know coming off the edge of that PCB there is raw data and power available.

All a guy has to do is slap on a scope and read what is coming off the buss. We know that the SmartCard contains memory, CPU and a real-time clock. I doubt the CPU is used for much of anything, we know the memory is used to hold the data from the machine, the real-time clock on the SmartCard used to assign the date/time stamp to the data as it comes off the buss.

So a guy makes a replacement PCB with a real-time clock chip on it, a slot for an SD memory card and memory storage, brings the SD slot out to the edge of the current opening, can probably use the same plastics. Send the guy your module, he removes the PCB replaces it with one with a SD slot and sends it back to you for a fee. You insert your formatted SD card and it begins storing data. When you want a report, you remove the SD card, insert it in your laptop SD slot and view the results with Excel, save the data if you want, no harm done.



the PCB pops right out:


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CPAPopedia Keywords Contained In This Post (Click For Definition): Power

[Guest]

lol someone needs a HOBBY!

[Snorkel]

[quote="ProfessorEd"]Respironics and Resmed have apparently told their DME firms not to sell the software to the general public.

A general principal of anti-tust law is that such actions where a manufacturers tells retailers not to sell to certan people are a "restraint of trade" and are illegal.

However, there may be exceptions for case such as this where it might be argued the public would be endangered by having access to more informaiton or the ability to change settings.

Is anyone up to date on antitrust law to know this area or have an informed opinion?

The anti-competitive effect of this policy is obvious since this restriction can created additional business for doctors or DME firms (if they charge a fee for reading the cards).

there may be a possible class action lawsuit here where the damages might be large since health is arguable being endanagered by not having needed information on whether our treatment is working. I suspect if the law is on our side (or even arguably on our side) that the firms would chose to settle and a class action lawyer would get a good fee out of it (and hence would be willing to take the case on for a contingency only fee) and thi would make the software available again, with possibly a small cash settlement to those who were hurt (more likely a coupon for a discount).

Since it is likely the equipment firms tried to remove the software only to keep the doctors or DME firms happy (who determine which manufacturers get the business in most cases), I supsect they would concede quickly and explain to those that wanted software access restricted (DME firms probably) that they had not legal choice.

By not having software available machiine manufactuers are at a competitive disadvantage with Puritan-Bennett (as long as they offer their software to the public). Also, there is somemoney to be made from software sales to the public (Obviously a disk and small manual is very cheap to make).

[mhacker]

Snorkel is on the right track
S/W is expensive to build and especially expensive to maintain - bug fixing, applications compatibility, data integrity, etc.

The software is buggy - they would need to fix it. From my experience, it is not that expensive and therefore not much effort is put into it. I think the marketing goal is to "sell the feature" to the end users at a huge markup and supply the software to doctors and sleep centers.

As many people that have the software can attest, data is missing intermittently. That could be the grounds for a lawsuit. Most people would never know that some data was missing. Even if the office told you, a quick support call would give you the standard excuse of "the card is bad - BUY a new one", "static caused it", "send in your machine for repair", etc.

Not many people are tech savvy, most doctors and sleep centers have technical staff or have a computer service that does their installation, repair and updates. Compatibility issues both hardware and software, along with operating systems and patches make it somewhat of a nightmare to keep working. (what version of .NET is on your computer?)

I am sure that equipment providers have outsourced the programming. The support would also probably be outsourced.

IMHO - they are covering their butts.

[cwsanfor]

Software is indeed expensive to build and maintain, particularly complicated stuff such as EncorePro, which has many feature non-clinical users don't need.

But aside from legal issues, how difficult is it to build something that simply gets the data that Encore Pro Analyzer needs? I believe there would be some API work and maybe encryption keys, but is this a huge project technically? Just curious. I'm a lousy programmer/architect.

[mhacker]

cwsanfor
But aside from legal issues, how difficult is it to build something that simply gets the data that Encore Pro Analyzer needs?

No legal issues as long as you are attempting to reverse engineer the data structure AND it does not have proprietary structures (ref: Lotus 1-2-3 lawsuit) AND does not use code from the program.

The data is visible but the structure is a bit obtuse. The proper driver is needed to access the smart card - and possible encryption. If it is indeed encrypted then the DRMC laws apply and just like CD ripping, DVD copying and DeCSS type programs - it could be stopped by the copyright holder.

The "recorder" part in the xPAP is taking a sample from the sensors at an unknown rate and storing it on the card. It should be a flat file and if so then is pretty easy to parse out into data and then display or archive.

You will still need the reader. I spent time on that issue last year. Good news is that they are $24usd from HK.

I know a "smart card wizard", wish he had OSA..... well, I don't think I'd wish it on anyone...

[Snorkel]

I know someone who spends his life dealing with smart cards - interop and drivers - and I'll see if I can get any ideas from him.

If EPA understands how to read the SQL db, then the only real issue *is* as pointed out reading the data (and understanding the data structure) on the cards, which I doubt would be very hard. Since I see no encryption stuff in the Encore Pro UI, I doubt the cards themselves have encryption enabled.

David

[Bert_Mathews]

If the companies will not change their position, the only options are distribute copies illegally, which I don't support (it is stealing), or build your own s/w to read the data from the smartcards and store them in a db. IF James' health improves, and folks feel generous, they could contribute funds for him to build a heavy duty version of EPA. It's a really good start of an application, and could actually be better than Encore Pro, which I think is pretty poorly designed from the User Interface perspective.
David

Now Thats SOMETHING I'd put a few BUCK on!!!!
BERT
-OR- even a new USB port to store data on a memory stick..............