
Firm wielding Theranos patents asks judge to block coronavirus test - ohjeez
https://arstechnica.com/tech-policy/2020/03/firm-uses-theranos-patents-to-sue-company-making-coronavirus-test/
======
TheFiend7
Unbelievable. This was the patent they were able to get. It comes with graphs
describing an "architecture" of their "unique" medical device.

Patent #8,283,155 "Specifically, the present invention provides portable
medical devices that allow real-time detection of analytes from a biological
fluid."

and is described as by the article

"This patent describes a generic architecture for a machine that automates
testing for the presence of substances in bodily fluids. In the system
described by the patent, an operator inserts a "test device" (which contains
both the bodily fluid to be tested and the reactants required to perform the
test) into a "reader device." The reader device then triggers the necessary
chemical reactions to perform the test and reports the results. Theranos'
patent isn't limited to any specific bodily fluid, reactants, or testing
protocol."

~~~
blackearl
How does such a broad idea even get a patent?

~~~
bumby
That is the schtick of patents. The goal is to get the most broad concept
approved to give you the most defensible area.

However, there is a distinction between the PTO and courts during infringement
cases. While the PTO grants the "broadest reasonable interpretation", courts
may have a more limited interpretation.

"Patented claims are not given the broadest reasonable interpretation during
court proceedings involving infringement and validity"

[https://www.uspto.gov/web/offices/pac/mpep/s2111.html](https://www.uspto.gov/web/offices/pac/mpep/s2111.html)

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hn_throwaway_99
One thing that I hope will come out of this coronavirus event, even if just
for a short while, is that people no longer at large accept that this anti-
social behavior is just "doing business".

And I realize the article was updated to give a "royalty free license", which
is complete and total bullshit because BioFire shouldn't need a license for
Theranos' bullshit patents that never worked anyway.

We need to start naming and shaming for this kind of trolling, anti-social
behavior. And not just the company name, I'm talking about the principals and
lawyers who filed this, who are nothing but a net-negative to society.

~~~
gruez
Do you really want to set a precedent that (intellectual) property rights are
suspended in times of crisis? Maybe I have a great idea for curing coronavirus
infections, but now I don't want to pour money into to r&d for it because I
know that the government won't uphold my patents next time a coronavirus
epidemic rolls around.

~~~
cranky_coder
Yes, I do. It’s a global pandemic - if you’re thinking about profit motive at
a time like this you are part of the problem. Full stop.

~~~
JoeAltmaier
Yet nothing that isn't paid for, can get done at any scale. The profit motive
here was absurd. But any company that makes something useful for this
pandemic, must find a business model that works. Else it won't happen.

~~~
neaden
Ah yes, we can see this with the famously privately funded Manhattan project.

~~~
SketchySeaBeast
Remember "One small step for man, one great leap for McDonald's fries"? Oh,
and the 3M Hoover Dam?

------
blakesterz
There is an [UPDATED] on this now:

"Update: Facing an avalanche of bad publicity, Labrador announced on Tuesday
that it would grant royalty-free licenses to companies developing COVID-19
tests. The company also claims it didn't know that BioFire was working on a
coronavirus test when it filed its lawsuit last week. The company seems to be
going forward with the lawsuit."

~~~
jacquesm
Royalty free? Well, pardon my French, but _fuck them_. They are not in a
position to license anything, that would be admitting they had a case to begin
with.

~~~
dctoedt
> _that would be admitting they had a case to begin with._

And that is _precisely_ what these people are after by making the offer — if
others in the industry are willing to take licenses under a patent, then the
patent owner can brandish that fact as indirect evidence of the patent's
supposed validity.

That kind of evidence wouldn't be dispositive by any means. At trial, though,
litigation counsel will put in any evidence they can — especially "proxy"
evidence that can readily be understood by non-technical people such as judges
and jurors. (A classic example of such proxy evidence is, "They lied!")

(Patent attorney here, although I don't do that kind of work anymore.)

~~~
dirtydroog
Correct me if I'm wrong, but if a patent holder doesn't defend their patent
isn't it possible for them to lose it?

~~~
wombatpm
You are wrong. TRADEMARKS have to be defended or you lose them. Patent
lawsuits can be targeted

~~~
pbhjpbhj
You also are wrong. Trademarks can be lost by non-payment of the renewal fees,
or by genericisation.

Failing to sue someone is not cause for cancellation of registered marks.
Neither in USA nor EU AFAIAA.

 _This is not legal advice; it is my personal opinion and makes no
representation about any associate or employee that I might be linked with._

~~~
dctoedt
> _Failing to sue someone is not cause for cancellation of registered marks._

Not quite. _Thermos_ , _escalator_ , and _cellophane_ became generic terms,
free for anyone to use, because everyone started using them and the trademark
owners didn't try to stop them. [0] That's why Xerox famously advertised that
we should say that we made a Xerox copy of a document, not that we xeroxed it.

( _Aspirin_ also became generic, and thus free for anyone to use, _in the
U.S._ , but that's because the trademark was seized from its German owner,
Bayer AG, as part of reparations after World War I. [1] _Aspirin_ is still a
trademark of Bayer in most of the rest of the world.)

[0]
[https://www.inta.org/INTABulletin/Pages/ASPIRINBrandorAspiri...](https://www.inta.org/INTABulletin/Pages/ASPIRINBrandorAspirinTabletsAvoidingtheGenericideHeadacheintheUnitedStates.aspx)

[1] [https://www.latimes.com/archives/la-
xpm-1994-09-13-fi-38019-...](https://www.latimes.com/archives/la-
xpm-1994-09-13-fi-38019-story.html)

------
achow
> _This patent describes a generic architecture for a machine that automates
> testing for the presence of substances in bodily fluids. In the system
> described by the patent, an operator inserts a "test device" (which contains
> both the bodily fluid to be tested and the reactants required to perform the
> test) into a "reader device." The reader device then triggers the necessary
> chemical reactions to perform the test and reports the results. Theranos'
> patent isn't limited to any specific bodily fluid, reactants, or testing
> protocol._

!

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neaden
I don't see any reason that a firm like Theranos shouldn't have had all of
it's patents struck down as void once it was obvious it was a scam. What
incentive do we have as a society to allow con artists to patent things and
inhibit real research?

~~~
drstewart
Just because Theranos as a company was a scam doesn't mean literally all their
patents are invalid?

~~~
mnm1
It was either a scam or it had valid, valuable patents (logically maybe not
legally). You can't it have both ways. If the patent is valid, then it wasn't
a scam. That means it developed something of value for all that investor money
and they should be happy with it. The patent is clearly in the realm of what
was promised. Of course, legally, who knows? There's nothing logical about our
legal system, especially our patent system.

~~~
jcranmer
Just because the _primary_ effort of a company is fraudulent doesn't mean that
_everything_ it did is inherently so.

As an (admittedly absurd) example, if I set up a company that sells cures via
mana crystal magic, I could still end up with a novel, patentable process for
crystallizing exotic compounds that would otherwise tend to explode during
crystallization.

I don't know much about the actual patent in question, but it sounds like it's
a patent prohibited by Alice anyways.

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drocer88
Article I, Section 8, clause 8 :

“The Congress shall have Power To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries….”

Can't Congress , on an emergency basis, simply define "limited Times" to a
very short duration for critical therapies.

~~~
zentiggr
Congress could reform the USPTO in any way they wanted, IF they wanted to.

Let's convince them.

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pergadad
This kind of people add nothing to the world. Can only hope they and all other
patent trolls catch covid.

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elorm
I've got to give it to them. You have to be a special brand of riffraff to use
such an "opportune" moment to settle monetary grievances. Doesn't the Legal
system in the US(Especially the Bar) have any punitive measures for unethical
lawyers?

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narrator
Most lawsuits filed by vexatious litigants about absurd and ridiculous things
can be thrown out of court before ever getting anywhere because the judge can
plainly see they are ridiculous.

One of the annoying things about patent law is because it is so technical, it
requires experts to determine if what the plaintiff is saying is ridiculous on
its face as the judge may be clueless about the technical aspects of the case.

------
coliveira
So, let's see: a failed company that never produced anything useful now feel
that it has the "intelectual" property rights to force other people stop doing
something that will save millions of lives? Only looking at the criminal
aspect of such a proposition, I imagine that any normal judge in the world
would throw this request away, disgusted.

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Causality1
So, is there a Guinness record for "largest lynch mob"? These idiots seem to
be trying to break it.

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refurb
Since I work in the biopharma industry, I've had a lot of people ask "This
company is making [vaccine, test, treatment] for Coronavirus. They'll probably
make a lot of money, right?".

My answer is "probably not". This is too big a public health issue. Any
company that slows down the process in the name of business is going to find
themselves in a PR storm and likely government action will make them give up
any control they might have.

~~~
Ididntdothis
I work in medical devices which is similar and I think they will make a lot of
money. They probably can’t push it as far as they tend to do with some cancer
drugs but they certainly won’t suffer.

~~~
refurb
Maybe I should rephrase. It's not like they'll lose money, but they'll make
much less than one would expect for such an important product!

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mariushn
Our country's state of emergency declaration says government can take
ownership of anything it wants (eg hotels to use as hospitals, factories to
make disinfectant).

Why doesn't the same apply to patents and drugs?

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sjg007
Well the Federal courts are suspended so the suit is currently meaningless. If
the test works and saves lives, sour grapes.

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justicezyx
I cannot fathom the stupidity behind this...

~~~
Ididntdothis
Being a remorseless psychopath works in business.

------
Shorel
Is there a way to jail them for criminal conduct?

This is way beyond only immoral.

------
andrewseanryan
That patent is absurd. This system is broken.

------
agiri
Only in America

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kevin_thibedeau
As officers of the court these lawyers have taken an oath to act in good faith
when advancing claims:

Morgan Chu

Alan J. Heinrich

Keith A. Orso

S. Adina Stohl

Dennis J. Courtney

Brian M. Weissenberg

Chaplin J. Carmichael

It would be nice if the California bar considered their actions in this
matter.

~~~
bertil
I’m generally surprised at how rarely a lawyer’s Bar punishes their members
for acting in a way that is immoral.

Acting against your peers or breaking confidentiality gets you out rapidly;
having personal problems, say drugs, does to — and I’m not challenging that.
But defending things that really should not seems to fail to trigger any
reaction. I guess that bad people need lawyers more but I’m curious if there
is a line or a reasoning that would help there.

~~~
naasking
> I’m generally surprised at how rarely a lawyer’s Bar punishes their members
> for acting in a way that is immoral.

Who decides what's immoral? Not too long ago, interracial dating was also
considered "immoral" by plenty of people. Plenty of injustice was perpetrated
by pushing moral agendas.

I frankly think it's crazy to be so ready to lynch others for working within
robust systems that evolved over centuries because these systems sometimes
violate their personal sensibilities. These systems have their own (evolving)
standards of ethics, and unless you understand them and the reason they exist,
don't be so quick to cast aspersions.

~~~
pbhjpbhj
>I frankly think it's crazy to be so ready to lynch others for working within
robust systems //

And I think it's crazy to excuse people for abject immorality simply because
they can lawyer their way around legal claims.

Moral consensus might get us bad decisions: I'd be interested to know how many
lawyers private life would be deleteriously effected if the bar upheld a
standard that accorded with the overwhelming moral tide of society at the
time. Sure the tide moves, but the deleterious effect of that tide beyond the
deleterious effect of the laws those people make would seem to be naturally
curtailed.

In short if the overwhelming majority found something to be immoral then it
would seem a reasonable standard to apply now. Of course in the fullness of
time we might reject those moral standards, but equally we might reject
legislation - or conversely begrudge not having been more stringent in our
moral arbitration of the deleterious actions of rogue elements in society.

In short your argument is impotent, and swings both ways in its impotency.

The main problem is defining what is abjectly immoral, what amounts to an
overwhelming majority, etc.. If we pushed a high moral standard at each
lawyer's bar, and excluded those who actually had some moral probity (false
negatives for taking actions "highly contrary to public morality") then would
it be too much cost if we then removed for more people whose actions were
shocking to public moral mores?

~~~
naasking
> In short if the overwhelming majority found something to be immoral then it
> would seem a reasonable standard to apply now.

Majority consensus does not entail truth of any kind. Your "reasonable
standard" would have seen no lawyer able to defend Rosa Parks.

> The main problem is defining what is abjectly immoral, what amounts to an
> overwhelming majority, etc.

A deceptively pleasant sounding summary of two problems so deep that they've
had no resolution despite millennia of philosophical debate. And you call my
argument impotent.

