Can Certification be Patented?

By Jerry Jacobs, Partner, and Audra Heagney, Associate
Pillsbury Winthrop Shaw Pittman LLP

It is our understanding that some questions have been raised to the Certification Commission for Healthcare Interpreters ("CCHI") regarding a pending patent application filed by Language Line Services ("LLS"). This pending patent application (No. 10167536) was filed in an attempt to obtain a patent for a certification program for medical interpreters. A patent for an invention is the grant of a property right to the inventor, issued by the US Patent and Trademark Office. There are several types of patents; the patent sought by the LLS is a business process, or business method patent.

Business process patents are a class of patents which disclose and claim new methods of doing business; these patents may be defined as a method of operating any aspect of an economic enterprise. Business method patents are a relatively new type of patent and there have been several legal decisions evaluating the appropriateness of patenting business methods. In late 2008, the United States Court of Appeals for the Federal Circuit decision held that many business-process patents granted in the last decade were not actually eligible for a patent; the decision stated that a method for doing business must be tied to a particular machine or transform matter. The Supreme Court recently heard oral arguments regarding this issue; accordingly this is an area of law that is still somewhat undecided. We have not engaged in a thorough analysis regarding whether the LLS certification program satisfies the criteria for a business patent; however, previously engaged patent counsel opined that it was highly unlikely that the LLS patent application would be successful.

Professional certification is the voluntary process by which a non-governmental agency grants recognition to an individual after verifying that he or she has met predetermined and standardized criteria. Numerous professional societies organize, operate, support or sponsor certification programs. The criteria or standards for certification generally include educational qualifications, experience in the profession or field, and passage of a written exam. Often, those that candidates that are successful in the certification process are required to comply with a code of professional or ethical conduct. Certification serves a public purpose as it helps individuals identify those that have attained a certain level of competency in a particular field.

The development of a psychometrically valid and legally defensible certification examination and process requires significant effort and development. Often, as a method of maximizing validity, organizations will create the certification program through an open process in which affected constituencies may participate in or comment on the certification program as it is developed or when it is changed. Accordingly, the creation of a certification program is a continuing process that involves the input of many individuals.

EDITOR’S NOTE: For more information on the status of Language Line Services’ patent application entitled "Interpreter certification system", see http://portal.uspto.gov/external/portal/pair. The application was given a "non-final rejection" in July 2009 although LLS has requested reconsideration. Since patent applications are only available on-line 18 months post-filing, it is possible that additional applications have been filed.