Those Ex-Theranos Patents Look Really Bad; Contest Opened To Find Prior Art To Get Them Invalidated

from the you'd-think-it-should-be-the-other-way-around dept

A few weeks back we wrote about how Fortress Investment Group -- a massive patent trolling operation funded by Softbank -- was using old Theranos patents to shake down BioFire, a company that actually makes medical diagnostics tests, including one for COVID-19. Fortress had scooped up the patents as collateral after it issued a loan to Theranos, which Theranos (a complete scam company, whose founders are still facing fraud charges...) could not repay. Fortress then set up a shell company, Labrador Diagnostics, which did not exist until days before it sued BioFire. After it (and the law firm Irell & Manella) got a ton of bad press for suing BioFire over these patents -- including the COVID-19 test -- Fortress rushed out a press release promising that it would issue royalty-free licenses for COVID-19 tests. However, it has still refused to reveal the terms of that offer, nor has it shared the letter it sent to BioFire with that offer.

And while some have argued that after issuing this "royalty-free license" offer, the whole thing was now a non-story, that's not true. It appears that the offer only covers half of the test: the pouches that have the test-specific reagents, but not the test device that is used to analyze the tests. And so while the COVID-19 test pouches may get a "free" license, the machines to test them are still subject to this lawsuit.

In the meantime, tons of people have been asking how Theranos -- who appeared to never have a working product, despite publicly claiming it did (and convincing Walgreens that it did) -- could possibly have received patents on technology that never actually existed. Tragically, the answer is that our patent system (for reasons that make no sense) does not require a working prototype, which results in all sorts of nonsense getting a patent. That said, the good folks at Unified Patents have launched a crowdsourcing contest for prior art about the two Theranos patents in question.

We kindly ask our crowdsourcing community of thousands of prior art searchers to take a few minutes to help identify prior art on these patents that never should have issued and help rid the world of them, in the process improving the world’s chances of testing for and containing COVID-19 and other dangerous public health concerns.

The contest will expire on April 30, 2020. Please visit PATROLL for more information or to submit an entry for this contest.

If you're looking to help out and would like a place to start, the good folks at M-CAM, who analyze patents for prior art and obviousness, have a fairly remarkable analysis of the Theranos patents, and refers to Fortress/Softbank/Labrador as "graverobbers." The analysis is worth reading, including this analysis of the 1st claim in the patent for "a two-way communication system for detecting an analyte in a bodily fluid from a subject...":

No shit. My tongue is part of a system which detects various ‘analytes’ in food such as salt, sugar, and acids. Don’t tell anyone, but I’m starting to worry that I might be the next target for an infringement lawsuit.

But on a more serious level, the analysis explains why the patents are pretty much exactly as sketchy as you would expect from a company of Theranos' reputation:

... the claims of the patent they state are being infringed are incredibly mundane and obvious (patents must be non-obvious to be granted). They include gems such as "a) a reader assembly comprising a programmable processor that is operably linked to a communication assembly;" where they point out that Biofire’s machine uses, of all things, an ETHERNET CABLE to export data from its processor. Heathens!

It then notes that M-CAM found at least 416 other patents that appear to be significantly similar to the patents at issue, which makes you wonder why the hell the USPTO approved these patents in the first place...

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Filed Under: covid-19, crowdsourcing, diagnostics, patent troll, patents, prior art, testing
Companies: fortress investment group, irell & manella, labrador diagnostics, softbank, theranos