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Shortly after our conference on Pain and Neuroimaging, I learned that Dr. Robert England received a patent on pain detection, entitled “Objective Determination of Chronic Pain in Patients,” issued on December 9, 2008 (U.S. Patent No. 7,462,155).
The claims are directed to methods for determining whether a patient claiming to suffer chronic pain in fact has chronic pain. By observing neuron activity, the patent claims that the determination can be made without subjective input from the patient. In essence, the broadly claimed methods compare differences in brain activity between a person claiming chronic pain when a pain stimulus is applied and people who are not in pain when the stimulus is applied.
The claims may not be adequately supported by the disclosure, such as the step of “deciding that the patient claiming to suffer chronic pain suffers chronic pain if the neuron activity observed in the patient while the stimulus is applied is judged to be statistically significantly increased from the neuron activity in the plurality of patients who are free of pain.” How much of a statistically significant increase must be observed to make that decision? Insurers would likely prefer a dramatically significant increase, while claimants would want the lowest possible level to show they are in pain.
It’s not clear whether an increase or decrease in brain activity of a patient, when compared with a “control” group, demonstrates the presence or absence of chronic pain when a stimulus is applied. Because brain activity in response to pain differs from person to person (and one person may rate an experience as more painful with less brain activation, or less painful with more brain activation), any such comparison would likely not help in determining malingering.