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How Far Is Too Far In Encouraging Healthy Eating
Wednesday, January 04 2012 @ 08:00 AM EST

Every once in a while (okay, actually way more often than most of us would care to think about) a patent issues that gives one pause. One reading of the patent may suggest a plausible, worthwhile invention that is well-intentioned. But a second reading of the same patent invites a far more concerned reaction.

Such is the case with U.S. Patent No. 8,078,492 recently issued to IBM. The title of the '492 patent is "Providing Consumers With Incentives For Healthy Eating Habits," but when does a system move from merely a personal incentive for which one can opt in to a system that may be imposed by the government or an employer? Do either have the right to enforce a particular diet with sanctions?

Consider this statement from the Detailed Description section of the patent, emphasis mine:

Consumption of healthy food may be monitored, for example, according to food purchases, food discarded, and food indicated by a consumer to have been eaten.
Is someone going to dig through your trash to see what you have eaten?



Let's start with a first premise that we could all be healthier if we ate healthier foods, and knowing the health value of foods is a helpful and critical step in that direction. That is why some governments, like New York City, have imposed reporting requirements on restaurants. (See, Fast-Food Calorie Law Goes Into Effect in New York City) That NYC law does not dictate consumer behavior; it is only about assuring that consumers are informed. There have certainly been advocates who have seen the benefits of the law with respect to informing consumers, but there have also been opponents who have questioned the effectiveness of the availability of the information in changing eating habits. A personal attestation since I spend a fair amount of time in NYC - it has certainly influenced me in making menu selections at restaurants.

The broader public health discussion centers on how to encourage people to adopt better eating habits, and one vocal proponent of such change has been Sam Palmisano, former CEO of IBM. In a July 2010 address to the National Governors Association Palmisano described incentive provided at IBM:

A key dimension of patient-centered healthcare is wellness and prevention. Within IBM, we have also substantially reshaped our own healthcare programs—for the 450,000 employees, retirees and family members we cover in the United States, at a cost of more than $1.3 billion annually.

In 2004, we pioneered the concept of wellness incentives for employees.

IBM has several wellness rebate programs available to U.S. employees that focus on such issues as exercise, healthy eating and weight loss, smoking cessation, health risk appraisal and children's health.

This strikes me as a good thing, not a bad thing, i.e., an employer providing incentives, such as rebates, to employees to live and eat healthier, since it still provides the employee the choice to opt in or opt out.

There have been articles suggesting that the '492 patent goes too far, e.g., IBM Granted Your-Paychecks-Are-What-You-Eat Patent. The author of that piece is suggesting that in IBM's world view IBM would have the government imposing a healthy eating system on us. That may read too much into this patent; you be the judge. Let's look at what the patent claims.

Independent claims 1, 10 and 19 talk about a system that stores a variety of "health index values" associated with foods that may be called upon by a consumer based on a grocery purchase, a restaurant order, or a home recipe. The claims specifically provide:

1. A method for encouraging healthy habits by an individual, said method comprising the steps of: tracking, using at least one computer system communicatively connected to a network, an actual purchase of a particular consumable item from a vendor by an individual for potential consumption; determining, at said at least one computer system, a plurality of separate health index values each associated with a separate one of a plurality of health index components for consumption of said particular consumable item; selecting, at said at least one computer system, a monetary electronic incentive for said individual based on said plurality of separate health index values matching at least one health index value requirement specified in a database of electronic incentives specified for said individual according to at least one factor from among food intake by said individual based on at least one of an ordered meal and a recipe for a meal previously reported to said at least one computer system and exercise performed by said individual previously detected by said at least one computer system; and automatically transferring said monetary electronic incentive via said network from said at least one computer system to an account provider system which stores said monetary electronic incentive in an electronic account for said individual.

...

10. A system for encouraging healthy habits by an individual, said system comprising: a plurality of server systems communicatively connected via a network; at least one first server system from among said plurality of server systems operative to track an actual purchase of a particular consumable item by an individual from a vendor for potential consumption; said at least one first server system operative to determine, from at least one second server system from among said plurality of server systems, a plurality of separate health index values each associated with a separate one of a plurality of health index components for consumption of said particular consumable item; said at least one first server system operative to select an electronic incentive for said individual based on said plurality of separate health index values matching at least one health index value requirement specified in a database of electronic incentives accessed from at least one third server system from among said plurality of server systems and specified for said individual according to at least one factor from among food intake by said individual based on at least one of an ordered meal and a recipe for a meal previously reported to said server system and exercise performed by said individual previously detected by said server system; and said at least one first server system operative to automatically transfer said monetary electronic incentive via said network to at least one account provider system from among said at plurality of server systems which stores said electronic incentive in an electronic account for said individual.

...

19. A program for encouraging healthy habits by an individual, residing on a non-transitory computer readable storage medium comprising instructions which when executed on a computer system cause said computer system to: enable tracking of an actual purchase of a particular consumable item from a vendor by an individual; determine a plurality of separate health index values each associated with a separate one of a plurality of health index components for consumption of said particular consumable item; select a monetary electronic incentive for said individual based on said plurality of separate health index values matching at least one health index value requirement specified in a database of electronic incentives specified for said individual according to at least one factor from among food intake reported by said individual based on at least one of an ordered meal and a recipe for a meal and previously detected exercise performed by said individual; and automatically transfer said monetary electronic incentive via said network to an account provider system which stores said monetary electronic incentive in an account for said individual.

[emphasis added]

The word tracking shows up, tracking how much the person exercised and what he or she bought from a vendor. Are they talking about an employee tracking his or her own exercise and purchases or employers tracking such things in employer provided cafeterias and exercise rooms? Makes a big difference (at least to me), and that's one of the problems with broad, ambiguous language in patents.

Maybe that doesn't seem too over the top to you, in that the employee could avoid eating in the cafeteria and exercising there. But what if their company-provided health insurance penalizes them for not participating? Or worse, if you don't have time to take a lunch break you get penalized for eating a candy bar? There just is a creepy factor in that, particularly in that computers going by "standards" might not realize that someone with diabetes, for example, ate a candy bar in an emergency blood sugar event. Who decides what is stored and who has access to it. Computers can't think, you know.

Again, given the broad language of the patent, what if the patent gets really popular with insurance companies. Might they do deals with supermarkets to track everything we buy? They could do deals with MacDonald's, in theory, also. Where are the four corners of this patent? What is beyond its reach? IBM might be thinking only in the context of an employer, but that doesn't mean the patent couldn't be used more broadly. There is often a certain blindness which afflicts patent holders where all they can see is the potential for good, not the potential for bad.

Given that this patent was filed for back in 2001 and only issued in December 2011, it's not surprising that there are any number of applications, including smartphone applications, that do some of this already. For example, I used a smartphone app called "Lose It" to help me lose about 20% of my body weight a year ago. My choice, and the only incentive I needed was a desire to feel healthier. Nobody else had access to my information unless I chose to share it.

To say there is no cause for concern with the '492 patent is all well and good. Certainly, some of its provisions could be useful. But then you start to read things like the various iterations expressed in a number of the dependent claims, for example:

6. The method for encouraging healthy habits according to claim 1, said step of selecting, at said at least one computer system, a monetary electronic incentive for said individual further comprising the step of: assigning, at said at least one computer system from a separate authority server system via said network, said monetary electronic incentive from at least one authority from among a plurality of levels of government and a health care insurance provider.

7. The method for encouraging healthy habits according to claim 1, said method further comprising the step of: specifying said monetary electronic incentive for said individual within said database of electronic incentives according to at least one of a health history and a current health condition of said individual.

8. The method for encouraging healthy habits according to claim 1, said method further comprising the step of: specifying said monetary electronic incentive for said individual within said database of electronic incentives according to a particular incentive standard assigned to a type of group, wherein said individual meets a characteristic of said type of group.

[emphasis added]

Incentives are one thing; but the reference to monitoring food discarded takes it to a new level. How would that be implemented? Could insurers partner with apps developers to capture and share information? Why not? What is to stop them? Keep in mind that U.S. privacy laws pale in comparison to those of other jurisdictions, especially Europe.

I have to admit, some of this come across as a bit (okay, a lot) "Big Brotherish." But the claim statements are no more disconcerting than the accompanying drawings ('492 Drawings) which reference an employer payroll server, a government server, and a health insurance provider server. I never get warm fuzzies when I see those three all talking to each other.

By the way, the only reference to the FDA in this patent is to the FDA being one possible source of standards for healthy food ("Healthy food, in the present invention, may be designated according to standards provided by an authority, such as the Food and Drug Administration (FDA)."). Not everyone agrees that FDA standards are in fact healthy. They certainly are not for everyone, for example those on particular diets for health issues, such as those who must avoid gluten, or suitable for those who like to follow alternatives they believe are a healthier diet, like vegetarians.

In the end, I find the '492 patent to embody thinking from 2001 (or 1984 if you wish) that is, to some extent, out of sync with where we, as consumers and healthcare clients, are in 2012. Information and choice are good things. Incentives can be good. Someone looking over your shoulder or forcing you to participate or to eat a particular way - not good at all. And the monitoring is simply creepy. Computers can do a lot of things, but that doesn't mean they necessarily should.

The one silver lining I take out of all of this is that a patent does not give the patent holder a right to practice the claimed invention, only the right to exclude others from practicing it. Let's hope IBM recognizes there are aspects of this patent that no one should be practicing.


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