UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TELADOC, INC.,
`Petitioner
`
`v.
`
`AMERICAN WELL CORPORATION,
`Patent Owner
`
`Case IPR2015-00924
`Patent 7,590,550
`
`DECLARATION OF SCOTT SILVERMAN IN SUPPORT OF
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`Teladoc Exhibit 1012, Page 1 of 20
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`

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`I, Scott Silverman, declare:
`
`I.
`
`INTRODUCTION
`
`1. My name is Scott Silverman. I am currently the President and Chief
`
`Technology Officer, as well as chief software developer, for ThinAir Data
`
`Corporation, a telemedicine software company.
`
`2.
`
`I have been retained by Teladoc, Inc. (“Teladoc” or “Petitioner”) to
`
`provide my expert opinions regarding U.S. Patent No. 7,590,550 (“the ‘550
`
`Patent,” Ex. 1001). More specifically, I have been asked to give my opinion about
`
`the meaning of the term “present availability” in relation to Claims 10-11, 23, and
`
`30 of the ‘550 Patent and the meaning of the term “on-call” in U.S. Patent No.
`
`7,412,396 (“Haq”) (Ex. 1002).
`
`3.
`
`I am being compensated for my work in this matter. My compensation
`
`in no way depends upon the outcome of this proceeding.
`
`4.
`
`I have been advised by counsel for Teladoc that American Well
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`Corporation (“AmWell” or “Patent Owner”), owner of the ‘550 Patent, filed a
`
`Response to Teladoc’s Petition for Inter Partes Review in this proceeding in which
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`AmWell argues that the term “presently available” means “currently available,” as
`
`well as other definitions such as “right now,” “immediate,” or “on-demand.”
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`5.
`
`I have further been advised by counsel for Teladoc that AmWell’s
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`Response relies on a declaration from Ronald S. Weinstein, M.D. (the “Weinstein
`
`
`
`
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`-1-
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`Teladoc Exhibit 1012, Page 2 of 20
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`Declaration”), in which Dr. Weinstein opines that, in the context of a traditional
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`medical practice and from the perspective of a medical doctor, the term “presently
`
`available” means either that “the medical service provider is prepared to pay
`
`immediate attention to the case” or that the medical provider is “currently
`
`available—set to go,” among other definitions.
`
`6.
`
`I have been further advised by counsel for Teladoc that Dr. Weinstein
`
`opines in his declaration that, from the perspective of a medical doctor in a
`
`traditional medical practice, the term “on-call,” which is used in Haq, does not
`
`mean presently available.
`
`7. My opinions stated in this declaration are limited to opinions
`
`discussed in American Well’s Response and the Weinstein Declaration.
`
`Specifically, my opinions stated in this declaration are limited to the meanings of
`
`the terms “presently available” and “on-call” as they are used in the ‘550 Patent
`
`and Haq, respectively.
`
`8.
`
`In my opinion, the term “on-call” as it is used in Haq means
`
`“presently available” as used in the ‘550 Patent.
`
`9.
`
`In my opinion, Haq’s description of a provider being “on-call” in the
`
`context of a “virtual clinic” discloses that the provider is “presently available.”
`
`10. Each statement and/or finding recited herein is based in whole or in
`
`part on one or more of the exhibits listed in Section III of this declaration.
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`-2-
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`Teladoc Exhibit 1012, Page 3 of 20
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`II. EXPERT QUALIFICATIONS AND CREDENTIALS
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`11. My qualifications for presenting the opinions in this declaration are
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`set forth in my curriculum vitae, a copy of which is attached as Appendix A to this
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`declaration.
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`12.
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`I have more than 25 years of experience as a software architect,
`
`developer, and vendor of commercial software in the telemedicine industry.
`
`13.
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`I attended Pomona College from 1982 until 1985 as a National Merit
`
`Scholar.
`
`14.
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`In 1990, I founded SkyBail Computing to develop information
`
`management software with integrated voice recognition capabilities for the medical
`
`and real estate industries. While at SkyBail Computing, I developed the SkyRIS
`
`Radiology Information Software (RIS) system. I consider SkyRIS to be the first
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`commercially available RIS to include integrated speech recognition software.
`
`SkyRIS included telecommunications integrations to enable Radiologists to
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`remotely interact with referring physicians at disparate hospital locations. SkyRIS
`
`also included a scheduler module to enable automated selection and display of
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`medical service providers according to sets of predetermined parameters.
`
`15.
`
`In 1996, I founded ThinAir Data Corp. to continue developing
`
`information management software for the telemedicine industry. While at ThinAir
`
`Data Corp., I developed TeleRIS, a RIS system based on the SkyRIS program
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`
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`
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`-3-
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`Teladoc Exhibit 1012, Page 4 of 20
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`targeted specifically at teleradiology applications. TeleRIS is currently servicing
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`many renowned hospitals, medical systems, and teleradiology companies.
`
`Currently, more than 2.6 million radiology reports are processed through the
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`TeleRIS platform servicing over 400 hospitals. TeleRIS includes integrations to
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`many different medical systems through Health Level 7 (HL7) and DICOM
`
`interfaces, as well as many custom interfaces which I have developed. I have
`
`developed all of the core functionality of TeleRIS, and I continue to develop the
`
`software to service ThinAir Data clients.
`
`16. During my more than 25 years at ThinAir Data and SkyBail, I have
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`become proficient at using and programming many different software development
`
`technologies, including database platforms such as Microsoft SQL Server and
`
`Superbase, and development platforms such as Microsoft ASP.NET, C#, and
`
`Visual Basic. I have programmed versions of TeleRIS using each of these
`
`technologies.
`
`17.
`
`I have successfully programmed and implemented HL7 integrations to
`
`nearly every key RIS, PACS, and modality system, including General Electric,
`
`Siemens, Epic, Cerner, McKesson, Carestream, Fuji, Meditech, Powerscribe,
`
`Accelerad, IBM, Keane, Dictaphone, MedInformatix, IDX, Alife, and more.
`
`18.
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`I routinely interact with other vendors and users of technology in the
`
`telemedicine industry through TeleRIS clients, interface development to third-party
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`
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`
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`-4-
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`Teladoc Exhibit 1012, Page 5 of 20
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`systems, and routine attendance of industry tradeshows.
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`19. Based on my knowledge of the telemedicine industry and
`
`telemedicine software, I was deposed in connection with a telemedicine patent
`
`infringement lawsuit styled Virtual Radiologic Corporation et. al. v. Imaging
`
`Advantage et. al., Case No. 13-cv-01705, (D.Ariz. 2003) involving U.S. Patent
`
`Numbers 7,970,634, 8,090,593, 8,145,503, 8,195,481, and 8,515,778.
`
`III. BASIS FOR OPINIONS AND MATERIALS REVIEWED
`
`20.
`
`The opinions set forth in my declaration are based on my personal
`
`knowledge gained from my education, personal experience, and on the review of
`
`the documents and information described in this declaration.
`
`21.
`
`In preparation of this declaration, I have studied:
`
` U.S. Patent No. 7,590,550 (“the ‘550 Patent”) (Ex. 1001);
`
` U.S. Patent No. 7,412,396 (“Haq”) (Ex. 1002);
`
` Patent Owner American Well Corp. Response (“Patent Owner
`
`Response”) (Ex. 1011); and
`
` Declaration of Dr. Ronald S. Weinstein, M.D. (“Weinstein
`
`Declaration”) (Ex. 2001).
`
`IV. LEGAL STANDARD APPLIED
`
`22.
`
`In preparing and expressing my opinions and considering the subject
`
`matter of the ‘550 Patent and Haq, I am relying on certain basic legal principles
`
`-5-
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`Teladoc Exhibit 1012, Page 6 of 20
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`that counsel for Teladoc have explained to me. I understand that, in this
`
`proceeding, the Patent Trial and Appeal Board (“PTAB”) has not construed the
`
`term “present availability” and I reserve the right to supplement this Declaration
`
`based on alternative constructions adopted by the PTAB.
`
`23.
`
`I have been advised by counsel for Teladoc that, in proceedings before
`
`the PTAB, patent claims are to be given their broadest reasonable construction,
`
`consistent with the teachings of the specification and file history. I am informed
`
`that the broadest reasonable construction standard dictates that claim terms be
`
`given their ordinary and customary meaning. I understand that a patentee can be
`
`his own lexicographer, however, I also understand that any special definition for a
`
`claim term must be set forth in the specification with reasonable clarity,
`
`deliberateness, and precision.
`
`24.
`
`I have been advised by counsel for Teladoc that the term “presently
`
`available” should be construed based on its plain and ordinary meaning, such as
`
`available at the present.
`
`25.
`
`I provide my opinions in this declaration based on the guidelines set
`
`forth above.
`
`V.
`
`“ON-CALL” AS USED IN HAQ
`
`26. Haq discloses a virtual clinic that “enable[es] patients . . . to
`
`correspond in real-time with their physicians.” Haq at 2:35-38. Haq uses the term
`
`
`
`
`
`-6-
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`Teladoc Exhibit 1012, Page 7 of 20
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`“on call” throughout its disclosure to describe a state in which a physician is ready
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`to “correspond” with a patient through the virtual clinic. Haq discloses that the
`
`term “on-call” means the physician is available at the present, such that the
`
`physician is prepared to pay immediate attention to a case. I understand that the
`
`meaning of “on-call” in the context of the virtual clinic described in Haq is
`
`different than the meaning of the term “on-call” in in the context of a traditional
`
`“brick-and-mortar” medical practice.
`
`27.
`
`For example, referring to Figure 5, Haq states that:
`
`[I]f a patient wishes to correspond with physician pursuant to
`an appointment, an appointment is set up through the virtual
`clinic with both the patient and physician, such that the patient
`may correspond with the physician at the appointment time,
`step 518. If from step 514 or step 516 the patient wishes to
`converse with a physician on-call,
`then
`the patient’s
`information on his/her medical condition is used to determine a
`suitable physician and the virtual clinic determines whether
`that physician is on-call at that time. If the physician is on-
`call, the patient may correspond directly with the physician,
`step 520.”
`
`Haq at 10:4-20 (emphasis added).
`
`28. As used in the aforementioned excerpt from Haq, the virtual clinic
`
`determines whether the physician is “on-call at that time.” To do so, the virtual
`
`clinic would query a data repository that stores current statuses for physician’s
`
`logged into the virtual clinic.
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`-7-
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`Teladoc Exhibit 1012, Page 8 of 20
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`29. Furthermore, the excerpt recites that the “patient may correspond
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`directly with the physician” if the “physician is on-call.” As used in Haq,
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`“correspond directly” means a real-time communication channel, such as voice,
`
`chat, or video, would be established between the physician and the patient. (See
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`Haq at 2:35-38, 10:59-62). This real-time communication would occur “at that
`
`time,” such that the physician would have to be presently available “at that time”
`
`(e.g., available at the present) in order to participate in the direct correspondence
`
`with the patient. Accordingly, “on-call”, as used in this excerpt, means that the
`
`physician is available at the present (i.e., presently available).
`
`30. Figure 5 of Haq discloses that the virtual clinic queries, at step 516,
`
`whether the patient desires an appointment or an on-call physician, and then, if an
`
`on-call physician is required, the patient corresponds with the physician at step
`
`520.
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`
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`-8-
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`Teladoc Exhibit 1012, Page 9 of 20
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`Haq, Figure 5 (annotated).
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`
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`31. As discussed in the corresponding excerpt from Haq, reproduced
`
`above, the correspondence with the physician is “direct”, such that a real-time
`
`communication channel would be established. Figure 5 further illustrates that
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`there are no steps between the determination of whether an on-call physician is
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`required at step 516 and the establishment of the communication between the
`
`
`
`
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`-9-
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`Teladoc Exhibit 1012, Page 10 of 20
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`physician and the patient at step 520. Thus, the real-time communication between
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`physician and patient occurs immediately after the determination of whether the
`
`on-call physician is required (at step 516). Accordingly, on-call means available at
`
`the present.
`
`32. Referring to Figure 6, Haq states:
`
`Initially, the physician contacts the virtual clinic, step 604,
`informing the virtual clinic whether he is going on-line to
`conduct an appointment or is available for on-call conferences,
`step 606. If the physician is conducting an appointment, he may
`first retrieve the patient’s medical records, step 608, and
`retrieve any diagnostic testing since his last correspondence
`with the patient, step 610, and then correspond directly with the
`patient, step 612. If the physician is on-call (from step 606),
`before corresponding with a patient, step 612, he may first
`review the patient-submitted personal information and the
`patient-submitted information on his/her medical condition,
`step 614, such that the physician may more thoroughly address
`the patient’s concerns.
`
`Haq at 10:23-36.
`
`33.
`
`In this excerpt from the disclosure, Haq explains that the physician
`
`“contacts the virtual clinic . . . informing the virtual clinic whether he is going on-
`
`line to conduct an appointment or is available for on-call conferences.” This
`
`excerpt discloses that the physician logs in to the virtual clinic system. At the time
`
`of login, the physician then indicates if he or she is conducting a pre-arranged
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`appointment with a patient, or is “available for on-call conferences.” Thus, the
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`physician may be logging in without an appointment scheduled, but instead,
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`
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`-10-
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`Teladoc Exhibit 1012, Page 11 of 20
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`informs the virtual clinic that he or she is available, at the present, to correspond
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`with a patient (at step 612).
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`34. This excerpt of Haq further discloses that the physician’s login to the
`
`virtual clinic enables the virtual clinic to track the physician’s current availability.
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`In one decision branch, the physician will be busy because he or she had a
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`prearranged appointment with the patient, which he or she indicates at the time of
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`login, or is not logged in. In the alternate decision branch, the physician is
`
`presently available to consult with a new patient by reviewing the new patient’s
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`information and communicating in real-time with the patient. Thus, the virtual
`
`clinic tracks the physician’s present availability, at least, at the time of login and
`
`determines if the physician is presently available before connecting the physician
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`to a patient. Accordingly, on-call as used with respect to this excerpt from Haq
`
`means presently available.
`
`35. Figure 6 of Haq discloses that the virtual clinic determines if the
`
`physician is available for an appointment (i.e., at some time in the future) or an
`
`“on-call” interaction at step 606 and then, if on-call, reviews the patient’s personal
`
`and submitted information at step 614 and corresponds with the patient at step 612.
`
`There are no other intermediate steps in this progression. Thus, Figure 6 discloses
`
`that the physician who is “on-call” is available, at the present, to review the
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`
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`
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`-11-
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`Teladoc Exhibit 1012, Page 12 of 20
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`patient’s information and correspond with the patient. Accordingly, on-call means
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`available at the present.
`
`Haq, Figure 6 (annotated).
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`-12-
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`Teladoc Exhibit 1012, Page 13 of 20
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`36.
`
`Another excerpt from Haq recites:
`
`When a patient accesses the virtual clinic, he/ she is asked to
`choose a physician from among those on their panel, or if the
`patient does not have a preference or needs urgent care and
`his/her personal choice is not available for providing urgent
`care, the virtual clinic connects him/her to an appropriate
`physician in the specialty which the patient is seeking.
`
`Haq at 6:10-15.
`
`37.
`
`This excerpt from Haq teaches that the virtual clinic has the ability to
`
`check availability of a physician or a pool of physicians, at any moment in time.
`
`For example, the virtual clinic would determine if “his/her personal choice is not
`
`available” by maintaining (i.e., in a data repository) the availability status of those
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`physicians. More specifically, this excerpt of Haq discloses that the virtual clinic
`
`does not connect a patient to a physician who is not available. Thus, the virtual
`
`clinic maintains availability status of the physicians within the pool of physicians
`
`on the patient’s preferred “panel” or the pool of physicians “in the specialty which
`
`the patient is seeking.”
`
`38. Haq uses the term “on-call” to describe a physician’s state within a
`
`virtual clinic in the same way that the ‘550 Patent uses the term presently available
`
`to describe a physician’s state. First, in reviewing the ‘550 Patent, I noticed that
`
`the term “presently available” only appears in the claims, and is not defined
`
`elsewhere in the specification. However, the ‘550 Patent does describe, in
`
`reference to Figure 1, that:
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`-13-
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`Teladoc Exhibit 1012, Page 14 of 20
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`In some examples, the availability of one or more providers 130
`is tracked, and at the instant a consumer 120 desires to connect
`and communicate with a provider, the system 110 determines
`whether a provider is available.
`
`The ‘550 Patent at 5:8-12.
`
`39.
`
`The determination of availability described in this excerpt from the
`
`‘550 Patent is precisely what the virtual clinic in Haq does when the physician logs
`
`in and indicates his or her availability, as discussed above with respect to Figure 6
`
`of Haq.
`
`40.
`
`The ‘550 Patent further explains that:
`
`The system enables the consumer to search for providers that
`are available at the time the consumer is searching and enables
`the consumer to engage a provider on a transactional basis or
`for a one-time consultation.
`
`The ‘550 Patent, 5:48-51.
`
`41.
`
`The use of the term “available at that time” recited in this excerpt
`
`from the ‘550 Patent is the same as Haq’s use of the term “on-call at that time”
`
`with respect to Figure 5 of Haq. In both the ‘550 Patent and Haq, the
`
`computerized system (i.e., the virtual clinic) connects the patient to the physician if
`
`the physician is “on-call at that time” (as recited in Haq) or “available at that time”
`
`(as recited in the ‘550 Patent). The concept in both disclosures is the same in that,
`
`if the physician is available at the present, the system connects the patient to the
`
`available physician.
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`-14-
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`Teladoc Exhibit 1012, Page 15 of 20
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`42. The ‘550 Patent also explains that:
`
`When a provider 130 logs 144 into the system 100, the provider
`130 indicates 146 (such as by setting a check box or selecting a
`menu entry or by responding to a voice prompt) to the tracking
`module 112 that he or she is available to interact with
`consumers 120.
`
`The ‘550 Patent, 6:33-37.
`
`43. This concept of indicating an availability state to the system at the
`
`time the provider logs in to the system is the same as Haq’s description of the
`
`physician indicating whether he or she is on-call at the time of login as described
`
`above with respect to Figure 6 of Haq. Specifically, in the ‘550 Patent, the system
`
`checks to see if the provider indicated that he or she was available before
`
`connecting the provider with a patient, just like in Haq where the virtual clinic
`
`checks to see if the physician has logged in and indicated that he or she is on-call
`
`to correspond with the patient (i.e., for an on-call conference with the patient). In
`
`either patent disclosure, the physician is indicating to the system that he or she is
`
`available at the present.
`
`44. The ‘550 Patent also explains that “a request is received from a
`
`consumer of services to consult with a service provider, an available member of
`
`the pool is identified, and a real-time communication is initiated between the
`
`consumer of services and the identified member of the pool.” ‘550 Patent at 2:54-
`
`58. Similarly, Haq discloses that “if the patient does not have a preference or
`
`
`
`
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`-15-
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`Teladoc Exhibit 1012, Page 16 of 20
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`needs urgent care and his/her personal choice is not available for providing urgent
`
`care, the virtual clinic connects him/her to an appropriate physician in the specialty
`
`which the patient is seeking.” Haq at 6:11-15. Both of these passages disclose the
`
`same concept of availability as part of a process whereby the system: (i) receives
`
`requests from patients for consultation with physicians; (ii) determines which
`
`physicians meet the patient’s particular needs; (iii) determines which of these
`
`physicians are or are not available; and (iv) connects the patient with the
`
`appropriate and available physician.
`
`VI. CONCLUSION
`
`45.
`
`In my opinion, the term “on-call,” as used to describe a physician’s
`
`status in Haq discloses that the physician is “presently available,” as recited in the
`
`claims of the ‘550 Patent.
`
`I declare under penalty of perjury under the laws of the United States that
`
`the foregoing is true and correct. Executed this 22nd day of February 2016 at Los
`
`Angeles, California.
`
`Scott Silverman
`
`-16-
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`Teladoc Exhibit 1012, Page 17 of 20
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`Silverman Declaration
`Appendix A
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`Teladoc, Exhibit 1012, Page 18 of 20
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`

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`Scott D. Silverman
`1705 Crisler Way
`323-654-3453
`ssilverman@thinairdata.com
`
`SUMMARY
`
`More than 25 years programming and application development experience.
`More than 17 years experience developing telemedicine applications
`More than 14 years integration experience developing HL7 interfaces with medical information
`systems
`
`COMPUTER SKILLS
`
`Languages
`Proficient in: Microsoft Visual C# and Microsoft Visual Basic
`
`Software
`Database: Microsoft SQL Server, Superbase
`
`
`Platforms: Microsoft Windows®, Microsoft ASP.NET
`
`Integrations
`HL7: GE, Siemens, Epic, Cerner, McKesson, Department of Veteran Affairs, Fuji, Carestream,
`
`Intelerad, Meditech, Powerscribe, Indian Health Services, CPSI, Accelerad, IBM, Keane,
`Dictaphone, MedInformatix, IDX, Alife, Medical Manager
`
`EXPERIENCE
`
`Founder, President and Chief Technology Officer
`ThinAirData Corp
`Primary responsibility is design of custom implementations of the TeleRIS product platform
`
`which is used by ThinAir Data’s telemedicine clients to process over 2.6 million radiology reports
`per year for more than 400 hospitals and clinics.
`
`1996-Present
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Past and Present Client List includes: Baylor Healthcare, University of Arizona, University of
`Pennsylvania, Virtual Radiologic (vRad), Emory Clinic, Carle Clinic, Massachusetts General
`
`Architected and developed the TeleRIS DICOM order generation module where medical
`diagnostic (DICOM) images (Xrays, MRIs, CAT Scans, Ultrasounds, etc) are sent from multiple
`medical facilities to a single teleradiology system and are automatically associated with the
`sending facility and automatically create a radiology order.
`
`Architected and developed the TeleRIS automatic, multi-facility report distribution system where
`multiple fax numbers, printers and email addresses are maintained for each medical facility and
`physician being serviced by the teleradiology system so medical reports will automatically fax,
`print or email to associated physicians and appropriate locations at each medical facility when
`radiologists using the teleradiology system complete their interpretations of the DICOM images.
`
`Architected and developed the TeleRIS inbound fax module where faxes being sent from multiple
`facilities could be faxed into a single teleradiology system and be automatically identified and
`linked to the sending facility.
`
`Architected and developed the TeleRIS licensing and credentialing module where the state
`licenses and facility credentials for each radiologist were maintained.
`
`Architected and developed the TeleRIS intelligent worklist module where radiologists using the
`system are only given access to radiology orders which had originated from states where they
`had licenses and from facilities where they had necessary credentials.
`
`Architected and developed the TeleRIS assignment engine where radiology orders are
`automatically assigned to radiologists based on criteria including license, credential,
`subspeciality and current case load.
`
`Architected and developed the TeleRIS partitioning module where users from individual facilities
`are only allowed to see patients from their respective facility even the system as a whole
`
`Teladoc, Exhibit 1012, Page 19 of 20
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`

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`contains patients from many facilities.
`
`
`
`
`
`
`
`Developed the database architecture for TeleRIS so patients from multiple facilities who
`happened to have the same identifying medical record number (MRN) could be stored in the
`same database without data from one patient mixing with another patient with the same MRN.
`
`Developed the database architecture for TeleRIS so radiology orders from multiple facilities
`which happened to have the same identifying accession number could be stored in the same
`database without data from one order mixing with another order with same accession number.
`
`Deposed in connection with a telemedicine patent infringement lawsuit styled Virtual Radiologic
`Corporation et. al. v. Imaging Advantage et. al., Case No. 13-cv-01705, (D.Ariz. 2003) involving
`U.S. Patent Numbers 7,970,634, 8,090,593, 8,145,503, 8,195,481 and 8,515,778.
`
`Solo Developer
`SkyBail Computing
`Developed SkyRIS - first Radiology Information System with integrated speech recognition from
`
`IBM
`
`1990-1996
`
`
`
`
`
`Developed medical applications using early speech recognition technologies
`
`Developed real estate applications using first generation pen computing technologies
`
`EDUCATION
`
`Pomona College
`Claremont, California
`National Merit Scholar
`
`1982-1985
`
`Teladoc, Exhibit 1012, Page 20 of 20