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Ask HN: Elizabeth Holmes has 200 patents – if tech didn't work, why not noticed?
207 points by anonymousmoose on June 16, 2018 | hide | past | favorite | 118 comments
I searched her name on a couple of patent search engines.

Turns out she has around 200 patents (with other people mostly).

So if her tech didn't work, then why didn't people figure it out sooner? Why did it take a journalist from WSJ to find the fraud?

How come some prominent physicist or biologist doing "competition research" didn't declare that the patents were based on bogus claims?

Thomas Edison freely admitted most of his 1,093 US patents were for inventions that would never have worked.

Patenting a completely ridiculous and impossible idea is quite straightforward if you know the system and have the money and reputation.

Journalists are notoriously bad at technical due diligence, but the fact is even trained scientists and engineers can be duped, particularly when access is limited.

Having been in a similar situation (not the federal one), where something looked fishy in a company I was involved in (and ended up being revealed as fishier than fish), I wouldn't be at all surprised if it comes out that the patents were fine, the ideas were fine, the talent had the skills, and it would have been less work on everybody's part to actually build it than to lie, cheat, and misrepresent it.

I have never been to or interviewed anywhere more paranoid/aggressively secretive than Theranos, and that includes military bases and classified government installations. This should be the moral of the story: investors should take as a red flag companies that work that hard to show you they're hiding their technology.

Patenting inventions that don't work is a great way to waste a lot of money on patent attorneys and patent office fees. Worldwide patenting can get even more ridiculously expensive.

There are some really nutty patents out there.

I am listed as (co)inventor for several patents from my last job with a big firm. All but a couple of them my report to my team lead was along the lines of “this new method does not provide a benefit over what’s existing, but also does not negatively impact.” It’s truly an experience sitting in a conference call with a company patent lawyer where you say one thing and then you listen to them spin it in a more positive light. The money needed to file the patents pay out patent bonuses (to the people listed as (co)inventors) is literally a rounding error. My team lead held on the order of tens of patents, all with similar findings, all filed to prevent our competition from patenting first.

The reason it's done is that you structure the patent broad enough & vague enough to still be enforceable but cover more than what exact specific thing you were actually thinking about. It's shitty IMO & a lot of patent trolls rely on this but that's one of the downsides of the way the patent system works (it's a tradeoff - if you tried to solve this problem you'd end up creating other problems so you have to figure out which downsides your OK living with or mitigating in other ways).

Isn't it ironic that people who cheat on exams expend so much effort at it? Wouldn't it be easier to just learn the material?

Fear of failure (of negative evaluation) is a strong psychological force for those seeking social approval. One way is to avoid evaluation entirely or until things are certain.

The patents don't really tell you whether the Theranos technology actually works. They cover small parts of the overall system - fluid handling, centrifuge configurations, software processes and so on.

It's quite common for companies to use a mix of patents and trade secrets to protect their technology. Filing for patent protection is a tradeoff - you gain the exclusive right to use that invention for 20 years, but the invention becomes public knowledge. In many cases, that tradeoff isn't worthwhile. The fact that a set of patents don't add up to a working process is quite normal.

But are they required to deliver individually? If not I can imagine patents in the spirit of "fake it before you make it" which may be applied against someone else who "made it" while the patent holder still "fakes it"

or not even trying to.

This actually happened to Theranos itself. In the book (Bad Blood by Caryiyou), there is this old genius medical guy who is in a family fued with Elizabeth's family, he hears about Theranos early on in their development, thinks his way through the machine they are probably building, and decides to file a patent on sending remote diagnostic information to doctors. The entire point of his patent was so that Theranos would have to pay him - and he did it purely because he didn't like Elizabeth's family. He never built anything, never made a single swipe of a soldering iron.

She was able to defeat him by getting better lawyers. The book says she was paranoid, but also shows that this is kind of the environment she was in. This kind of abuse of the patent system is normalized within those vaunted halls of power and wealth. Big companies all have their portfolios of questionable patents and the lawyers sort it out in court. She wanted to build her portfolio just like anyone else in that situation. She was obsessed with Steve Jobs... people forget all the crazy patent lawsuits he was involved in, going back to the 80s.

Carreyrou :) By the way, the book is really good. Should be suggested reading for anyone in the workforce or about to enter it.

All the modern patent has to do is look plausible. It doesn't has to have been reduced to practice, or be practical, or work, or even obey the laws of physics. (Though they will catch baldly impossible things like perpetual motion.) It just has to be novel, and have the right paperwork.

You're not required to proof anything; you can (and people often do) patent things that just seem good ideas at the time. If you work for big companies you're strongly encouraged to patent lots, and generally all you have to do is persuade some of your colleagues that it makes sense before then convincing the patent examiners it's new.

There are thousands of patents for perpetual motion machines. An invention must be novel, useful and non-obvious to be patentable, but it doesn't actually have to work.


I thought perpetual motion machines claims were automatically denied. I know they were back in the 1970s when my dad worked at the patent office.

Yes but the interesting aspect of this is that they had to make a specific rule for this case. In the general case of "filing nonsense" the system fails.

> I thought perpetual motion machines claims were automatically denied.

I think the current policy is they are only patentable if there is a working unit that runs for at least a year when left alone in the patent office.

It can’t be very useful if it cannot work even in principle though.

Peer review strikes me (as a complete outsider to this world) as potentially quite a good filter. Were your colleagues critical or taking stuff on trust?

That's what Lemelson did with his submarine patents; it made him a lot of money.

Or, one source of patent troll fodder.

Holmes figured out a pathway to violate the trust of old man wisdom. Sounds like she just fished the right old men. One of those that that’s incredibly mature in one aspect of life and threw all her effort in that direction naively ignoring the rest of of what “trust” actually facilitates.

Poo poo for the men who were fished... don’t s*!t where you eat.

Many of the board members of Theranos were retired military officials, which seems especially interesting in the context of how Theranos was originally planning on selling the technology that we now know to be non-working to the military. I recall that the sale was originally blocked by low-level military regulators. Holmes may not have scammed as many people as we thought - the window is open on the idea that some of her funding and support may have proceeded knowing that it was a ball of nothing, in the hope that it could be pushed forward anyway.

[0]https://www.bizjournals.com/sanjose/news/2018/03/14/theranos... [1]https://www.washingtonpost.com/news/wonk/wp/2015/12/02/inter...

I get the sense from reading the book that a lot of the fraud Holmes perpetrated was with the intent of buying time and pushing forward with a finalized product. It's still fraud, of course, but fraud with a vision I guess you could say.

'buying time' ... while raising capital from investors, for a fraudulent technology.

Seems like a sort of ponzi scheme where the 'financial instrument' is a 'technology vision'.

Would not be surprised if Holmes pay anything to the earlier investors, with the money of the new ones...

Her life's work, in her words, was 'redefining the paradigm of diagnosis' ( https://youtu.be/5tEeSHy1x98?t=1m19s )

Very 'Silicon Valey' lingo in her speech: 'Reinventing / Redefining / Reimagining XYZ'. With a portfolio of groundbreaking patents...

Given all that, I have wondered if there was ever any intent to actually develop any working tech at all. How many blood samples did they get scanned with other people's money before being shuttered, and how much is that database worth?

What on earth does that even mean in this context? "Don’t shit where you eat" is a warning against office romances. This is plain old fraud AFAIK.

> "Don’t shit where you eat" is a warning against office romances.

It's a warning against poisoning an environment on which you depend that has been applied to lots more than office romances, though that may be the most common use in some social circles today.

That makes sense. I’ve only ever heard it used in that context, but the more general interpretation is a much more logical use of the metaphor.

The more general interpretation is not shitting where you eat

This is the first time I've ever heard that term used in the context of office romances.

It's an uncomfortably mixed metaphor.

The numbers game is a part of the modern Patent system. It is almost certainly impossible for a patent officer to asses the scientific or technical merit of a patent application. At best, they can throw out the nutbar submissions. The submitting companies often want patents partly (or mostly completely) for marketing reasons: "Our technology is protected by N patents!". Even Steve Jobs said this when he introduced the iPhone: "We’ve been innovating like crazy for the last few years on this, and we filed for over 200 patents for all the inventions in iPhone, and we intend to protect them." I am sure many of them are great, but one of those 200 is mine, and, frankly, the idea in it was never used in the iPhone.

> The submitting companies often want patents partly (or mostly completely) for marketing reasons

For startups marketing to investors can be a key goal of patents.

Any hints as to what that particular patent is about? =)

All I am willing to say is that my colleague and I made the suggestion to the Patent committee before we knew anything about the actual design of the iPhone (or even that there really was going to be one). In essence, we imagined what would be needed to enable a click-wheel to function for text and numeric input, and proposed a solution. We were surprised that the committee accepted the proposal - and, when we finally were disclosed on the iPhone, there was no click-wheel! But the patent was granted.

People were skeptical of Theranos' claims before the WSJ expose from Oct 15, 2015.

Here are some examples that predate that article:



This discussion from 2013 talks about Theranos doing full blood draws which they wouldn't need to do if their technology worked: https://forums.studentdoctor.net/threads/theranos.1043576/

I brought this up in a comment downstream, but it was a Dec. 17, 2014, blog post by the now defunct Pathology Blawg that arguably led to the downfall of Theranos. The Blawg author was contacted by someone feuding with Holmes at the time. The Blawg author eventually contacted the WSJ reporter in secret:


One of the compelling things the Blawg author did was note this passage in the New Yorker story [0]

> Holmes also pointed me to a pilot study published by Hematology Reports, an online-only peer-reviewed journal; she is listed as a co-author. The report, released in April, concluded that Theranos tests “correlated highly with values obtained” from standard lab tests.

He looked up that journal, which he had never heard of before, and found that it was an Italian company that charged $500 to publish. He found the Theranos study [1], which actually did contain specific scientific detail, but not the good kind:

> So, to summarize, the study to which Ms. Holmes referred that showed Theranos “correlated highly” with standard lab tests looked at one biomarker (C-reactive protein) in a grand total of six patients and was published in an online-only Italian journal.

[0] https://www.newyorker.com/magazine/2014/12/15/blood-simpler

[1] http://www.pagepress.org/journals/index.php/hr/article/view/...

Ouch, the quote from Elizabeth Holmes on how the machine worked:

> "A chemistry is performed so that a chemical reaction occurs and generates a signal from the chemical interaction with the sample, which is translated into a result, which is then reviewed by certified laboratory personnel."

I guess this is an example of communicating 'up'

"A chemistry" doesn't even make grammatical sense.

Reads like basic.wikipedia.org

Errata: simple.wikipedia.org

OT: I'm getting a SERVFAIL response on archive.is from Cloudflare's DNS ( Weird. Not the first time I've had problems with Cloudflare though.

1) Competing engineers are often advised not to read patents, because it can result in treble damages in infringement claims: https://www.essentialpatentblog.com/2016/06/supreme-court-ru...

2) Patents are really hard to read

3) The difference between something that looks plausibly like it might work when written down and something that actually works can be hundreds of millions of dollars of bugfixing.

> Patents are really hard to read

There are a few patents that I've found informative and useful to read: Texas Instruments' calculator patents from the 1970s, the ENIAC patent, Astrolite, and Autotune. These are the rare patents where they actually explain things in detail, it reads like it was mostly written by an engineer rather than lawyers, and I know more after reading the patent than before. (Just want to give some recognition to the rare non-awful patent.)

Edit: I looked at a few of the Holmes patents. I'd put them in the awful category. Hundreds of pages of worthless discussion, followed by claims that are semi-incomprehensible, seem obvious, and have little to do with the earlier hundreds of pages. They have lots of nice graphs and diagrams though.

Eric Drexler's solar-sail patent was the only actually-educational patent I've ever seen, myself. https://patents.google.com/patent/US4614319 (Hm, I remember it as more detailed -- maybe I was remembering a tech report instead. But still this looks like reasonable English.)

> 2) Patents are really hard to read

I second that. In a previous life, I had to read and understand a few dozens of patents. Imagine page after page of buzzwords, unjustified claims, approximate logic, vague and meaningless sentences, clearly designed to be write-only.

In my experience, reading cutting-edge research papers in domains with which I'm barely familiar is so much easier.

There is a structural reason for this. What's the easiest patent to read? Show an object, name it clearly, describe what it does and how it's new. Easy!

But that is a poorly-written patent. As a competitor you can just read it, do the same thing but substitute something equivalent for one part, and you've just stolen the research investment that led to it.

A good patent has to describe the broad category (the innovation). And suddenly you go from clearly describing an example to using weird high-level vocabulary.

I wonder what u/Alupis is thinking today? via a HN thread in 2014:


> Seems rather sad state of our Patent system here in the US where a 19 year old with no prior technical background, who was a Chemical Engineering student, a sophomore no less (meaning barely finished or finishing General Ed. requirements and just starting Major courses), can write and file for a highly-technical patent involving radios, sensors, embedded devices, and the like...

> It's very doubtful she understood how any of that works, or would work in her product/patent. Underlying story seems it's absurd this was patent-able.

Once a patent is issued, it is exceedingly rare for it to go through additional review unless there is litigation that prompts it (re-exam, IPR, etc.)

Separately, it's quite common for people to patent things that don't work or can't be directly implemented as stand-alone things at all. Indeed, defendants in patent litigation often point out the many early patents on "flying machines" as proof that the issuance of a patent is not proof that it would lead to a working thing.

Theranos had great PR.

You have to understand that most tech news places question the substance of most press releases. Especially if they are medical.

For example, no-one questions AirBnB's core buisness model: listing holiday lets. There is literally nothing+ new about airBnB. Uber is the same, its a taxi service that is subsidising users.

Babylon health is another example, which has yet to really break mainstream news.

They have run trails for replacing NHS 111, They make a lot of noise about using AI and other such bollocks, but actually its a decision tree with a nice natural language system infront.

What they don't say in the blurb is that its less effective than the current telephone system. Parts of it are deemed unsafe by their own medical staff, and there is no rigid medical testing to prove it's safety.

None of this matters yet because its an app, and it has "AI".

The truth is that in the alternative timeline where Theranos had a male founder they would never gotten their initial founding.

Holmes and Theranos rode the perfect wave built by the media being thirsty for a young, smart (blonde) female. It's so obvious when you look at it in hindsight.

Hilariously, even after the total collapse this topic is often taboo.

I can't help but feel for sorry for the young women out there creating actually useful innovations.

Theranos's first funding was in 2004, it had already raised $90M at $1B valuation in 2010, and started filling its board with defense bigwigs in 2011.

What media wave had happened at that point? From what I've seen, serious media coverage appeared in 2013, when they left "stealth mode" with the promise of the droplet testing, almost a decade after the initial investment.

I think he is referring to the media wave promoting women in entrepreneurship and in STEM courses and jobs, not to the media wave promoting this specific company.

I was misinformed (or remembered incorrectly) about the founding/media blitz sequencing. Thanks for informing me.

Then if you're interested in being less wrong, I suggest you to question why you were believing what you said, keeping in mind it was wrong.

I think a big part of it is that people wanted it to be true.

The idea is very compelling. Who wouldn't want it to be true/possible? And it's obvious to anyone how valuable such a thing would be.

Plus... Young woman founder/CEO (& paper billionaire as a result). Dropout from Stanford. Silicon Valley. On the cover of magazines. Big names on the board. Association with Bill Clinton, etc.

She's relatively young and attractive and perhaps possesses hidden talents. Like maybe the ability to charm the pants off (so to speak) of men - especially older, rich, powerful men who were in a position to help move her ambitions along. Also men who may have been somewhat blinded to obvious warning signs of potential trouble.

Doubtful. If this was common we would have more female startups funded. Just because she is attractive and raised money doesn’t mean she had to use sex to get there. She did go to a Ivy League school which brings a network and credibility in and of itself.

She didn't have to use sex, per se, but merely sex appeal. (It's kind of telling that you immediately went there.) Or maybe even the "You kind of remind me of my daughter/niece/young wife/etc" angle. Maybe even just the "youthful enthusiasm and vigor" angle, or the "female empowerment, breaking the glass ceiling" angle. I also understand that she liked to pass herself off as something of a female Steve Jobs, so there's that. Plus, female-led startups in Silicon Valley are pretty rare, so that in itself is an attention grabber.

I’d like to read the story about her. It seems like she was just a great self promoter. Being attractive does help, but that goes for both men and women. We tend to like attractive people, that’s why the big 4 consulting firms are full of young attractive kids recruited because they were jocks or cheerleaders.

My point is that if sex appeal was the core factor in her success, we would have significantly more female founders because almost all investors are men. It’s more likely to me that she was a amazing self promoter who didn’t let reality get in her way, similar to Steve Jobs.

She went to Stanford university which is not an Ivy League school.

Board members Henry Kissinger and William Perry unwittingly admitted they were dupes ten months prior to the first Carreyrou article in a Dec. 2014 article by Ken Auletta in The New Yorker: [1]

Kissinger, who is ninety-one, told me that Holmes “has a sort of ethereal quality—that is to say, she looks like nineteen. And you say to yourself, ‘How is she ever going to run this?’ ” She does so, he said, “by intellectual dominance; she knows the subject.”

Board members are clearly charmed by Holmes. She is a careful listener, and she is unnervingly serene; employees say that they can’t remember an instance when she raised her voice. “She has sometimes been called another Steve Jobs, but I think that’s an inadequate comparison,” Perry, who knew Jobs, said. “She has a social consciousness that Steve never had. He was a genius; she’s one with a big heart.”

1: https://archive.fo/yhpXZ

Somebody has to do the legwork to dig up problems. That's what journalists are for, so it's not surprising a journalist found it. There are "obvious" problems everywhere that nobody has found because nobody has looked. Such as bugs in open source software or a recent case in New Zealand where the government misread a report and gave incorrect advice about save levels of meth in houses occupied by meth users. That mistake created a whole industry of meth testers and decontaminators for something which suddenly turned out to be harmless after-all. Government housing tenants were forced out of their houses and made to pay the cost of decontamination. Landlords lost money having to clean up "dangerous" contamination - which could cost $10,000s to replace plasterboard but still nobody checked the source of that guidance to find the mistake.

I worked at a small tech company that was bought by a large company. They sent a patent attorney to talk to us. He said to send his office anything that might be patentable. He said that patents for big companies were kind of mutually assured destruction in the sense that if someone sued us over infringing on one of their patents if we had enough patents they were probably infringing one of ours.

Unfortunately one major flaw of the patent system is that you don't have to produce a working prototype to get a patent.

The United States had a working requirement only between 1832 and 1836, and only for foreigners.

So for the most part, if you can think it, you can patent it.

This will sound cynical but many patents are not for IP protection as much as for showing other people that you're a real tech company. Investors and customers are both groups that might be impressed by your having a patent.

This is the major reason I have seen startups apply for patents. Pure signalling value.

Lots of companies patent complete bunk, and I’ve never seen anyone get called on it. It seems like investors don’t really read them.

I have also seen companies patent things that won’t work and that they have no intention of working on - with the rationale that it will confuse competitors.

Given what we know about Theranos it’s entirely plausible that some of their patents were intended as “smokescreens”.

I'm just an ordinary Joe and it was pretty obvious to me from the beginning that this was mostly just a scam. For one, she didn't have the necessary background to really create anything new and inventive here. Second, her supposed goal was a "no needles" system, which of course she didn't really have. Third, my wife is a nurse and she told me that finger-prick samples are mostly useless for many of the tests that might need to be run, so instead relatively large amounts of blood have to be drawn from a vein. Also that one reason why they often draw multiple vials of blood is because the test results from each individual vial may vary considerably; I forget the details though.

That said, microfluidics (where you use minimal sample sizes and minimal reagents and such) is a real and growing thing, and I assume that she was just trying to ride that wave. But it turns out that this doesn't work so well for blood samples.

The book, "Bad Blood" (written by the WSJ reporter) goes into great detail about how Holmes and Theranos were able to get away with their scam. "Fake it till you make it" is a thing not particularly bound by physics, especially when you have charisma and the friendship and backing of influential investors and board members.

Incidentally, the book does contain a lot of discussion about patents. Holmes offended a longtime family friend, Richard Fuisz -- who, incidentally, was a former CIA agent -- around 2005-2006. He was mad Holmes and her family never consulted with him about the Threanos idea, so he wrote his own patent (made public on Jan 3, 2008) that he described as "the Theranos killer". It turned into a big legal battle that caught the eye of a Fortune writer, who ended up writing the first big magazine cover story on Holmes/Theranos:


The whole subplot is quite remarkable. Fuisz's battle with Theranos led to some damaging testimony in deposition. Fuisz's son became determined to take down Theranos and from what I can tell, had a big (but mostly unknown) part in the unraveling of Theranos. He found in a Google search a blog post [0] (now taken down) that made serious accusations about Theranos after the New Yorker cover story.

Joe Fuisz, Richard's son, ended up contacting the blog author and telling him about the Fuisz vs. Holmes fight [1]. This blog author ended up contacting a WSJ reporter that he had previously worked with, John Carreyrou.

So rather than science/engineering directly leading to Threanos's downfall, it seems a personal spat played a bigger part. And ironically, this spat involved a guy who wanted to out-patent-troll Elizabeth Holmes.

An excerpt from the book about what started Richard Fuisz's feud:

Richard Fuisz was a vain and prideful man. The thought that the daughter of longtime friends and former neighbors would launch a company in his area of expertise and that they wouldn’t ask for his help or even consult him deeply offended him. As he would put it years later in an email, “The fact that the Holmes family was so willing to partake of our hospitality (New York apartment, dinners, etc.) made it particularly bitter to me that they would not ask for advice. Essentially the message was, ‘I’ll drink your wine but I won’t ask you for advice in the very field that paid for the wine.’  ”

Carreyrou, John. Bad Blood: Secrets and Lies in a Silicon Valley Startup (p. 71). Knopf Doubleday Publishing Group. Kindle Edition.

[0] edit: Here's an archive snapshot of the now taken down blog post: http://archive.is/BGtRJ

Carreyrou gives a lot of credit to the author for giving the tip that turned Carreyrou's interest toward Theranos. Strangely, there's not mention of why the blog suddenly shut down. If you google around, you'll see it closed up a few weeks after Carreyrou's first big Theranos story.

[1] edit: via a comment on the oldest HN post (Sept. 2013) about Theranos, I found a link an online summary of the patent dispute:



It is likely that you are counting all the results of your search results, and not curating them. I counted 25 different patents in the USA (40 worldwide), and 13 of those are actually granted.

I want a process patent...

"Small Scale Patent Acquisition and Publication for the Purposes of Misleading Investors and Customers on the Feasibility of Large Scale Research and Development Efforts"

Theranos may have been outright fraud but their technical claims never seemed that outlandish. There are many legitimate companies/academic labs working on similar bloodtests and even brining more limited versions to market.

There timing was excellent too. I actually remember thinking a few years ago that all one would need to do to design something like the theranos product is run enough blood samples through a good mass spec and load the date into map reduce. But based on research since then "enough" turns out to be a whole lot.

And there are also scientists who think that ideas like that are ridiculous and biomarkers for certain diseases (like early stage cancer) will never be findable in blood. And many of them are vocal about the fact. But since there are experts on both sides that isn't a clear indictment of the idea.

It is also worth noting that the "crisis of reproducibility" is bad enough in bio that I wouldn't haven been surprised if Theranos had very promising early results that didn't pan out. Thats happened to a lot of people.

Personally I fully believe we'll see a Theranos like product in the next 20 years around the time protein sequencing and mass spectrometry tech gets cheap enough to do studies with on ~millions of people instead of ~thousands.

Inspectors don't really concern themselves with verifying that an invention works. That would be insanely expensive. It's on the inventor to make something work so that they can profit. Although I do think inventors should have some burden of proof that they're effectively using their patent to provide a service to the market that justifies their monopoly protection.

As a matter of fact, it is normal for patent examiners to not even read the invention specification and focus only on the claims.

I was surprised to learn that from a patent attorney, but it seems to be common knowledge, e.g. [1]. Upon reflection, that's the only way it can work. A generalist patent examiner could never understand all the inventions given the volume of applications they must handle.

[1] http://www.ipwatchdog.com/2016/07/25/anatomy-bogus-alice-rej...

It's only the claims that matter, but the claims typically draw on vocabulary and context established in the disclosure. Often, part of getting a patent granted is clarifying the disclosure such that the examiner can understand the idea and how it's different from previous art.

It was noticed. I can patent anything short of a perpetual motion machine regardless of functionality. But if you talked to people in the biotech community, most were very doubtful (at best) of her claims. I have several friends in the very markets she was going after, and they were never anything less than 100% certain she was a fraud and was going to blow up in the end.

I have like, a dozen patents, and I'm nobody special. Some companies, like the one I worked for, have a real culture around patenting anything and everything that seems even halfway interesting. It's all about volume. None of my patents are BS, they're just rather mundane and very limited in scope. I suspect it's the same case for Holmes.

Because the patent system in is broken, always has been, probably always will be. Less of it is about creating and protecting innovation, most of it is about creating litigation to slow down others who attempt to compete with you (even when they’re doing something different).

> Turns out she has around 200 patents (with other people mostly).

I have no idea about these patents, but it's certainly possible that those particular patents describe functional subcomponents/processes of an overall system that doesn't work.

> How come some prominent physicist or biologist doing "competition research" didn't declare that the patents were based on bogus claims?

I'm not sure what "competition research" means. In any case, approximately 0% of prominent scientists read patents. Patents are written both for and by lawyers/courts.

You’ve got to consider who has incentives to do the research. This basically breaks down into a few categories:

1) entrenched competitors that want to protect market share. 2) hedge funds that start OTC trading and are shorting. 3) insiders that want to vaporize the company as part of a bizarre money laundering scheme. (Most likely, although very bizarre, option imo.) 4) the rare journalist that does investigative research. 5) the rare VC that does dd.

So something changed to interest one of these groups. Prominent physicists and biologists couldn’t care less what private companies are doing.

"Prominent physicists and biologists couldn’t care less what private companies are doing."

Unless, of course, they are sniffing around looking for funding. Consider for example the current NIH/alcohol kerfuffle.

There are lots of legitimate reasons why this could have been so, such as they were patents of some small piece of Theranos' technology that worked, even though their grand scheme did not.

However, the real reason is that patents are bogus, and more or less all they assert is that this person or company filed the paperwork first. The Patent Office has not even close to the amount of staff they would need to actually verify that the patents they grant are working.

Is it legitimate to have a CEO add their name to a patent? My impression is that the "inventor(s)" have to be the people who actually came up with the idea.

According to the book, this was one thing that particularly bothered the lead scientist, Ian Gibbons, who was subpoenaed to testify in a patent case:

> IN APRIL, Theranos informed Ian that he had been subpoenaed to testify in the Fuisz case. The prospect of being deposed made him nervous. He and Rochelle discussed the lawsuit several times. Rochelle had once done work as a patent attorney, so Ian asked her to review Theranos’s patent portfolio in the hope that she could give him some advice. While doing so, she noticed that Elizabeth’s name was on all the company’s patents, often in first place in the list of inventors. When Ian told her that Elizabeth’s scientific contribution had been negligible, Rochelle warned him that the patents could be invalidated if this was ever exposed. That only served to make him more agitated.

Gibbons was the Theranos chief scientist who committed suicide in 2013:


I've seen this happen before. Especially with startups, I think it's a mixture of:

- CEO ego.

- Although patents by employees are assigned to the company and unequivocally owned by the company, many early stage (and especially paranoid) CEOs worry about the optics of having many named inventors leaving the company. If you're Google, IBM, etc with 100K employees filing 10K patents per year no one cares if X number of those employees in listed filings leave the company. If you're a relatively small, early stage company with a few hundred patents losing just a few key employees named on filings raises red flags for investors, journalists, etc as they could represent a substantial portion of your "inventors"/IP/brain trust, etc and thus, your valuation. Of course this kind of action is very transparent but with her own "reality distortion field" I wouldn't be surprised if anyone who reviewed these thought she was actually responsible for some portion of the invention.

- Some companies have a very broad policy for who to include as a named inventor. She could have been part of a single conversation/meeting/etc and required listing.

- CEO ego. Not a typo, I listed this twice because in this as in many of these cases, ego is likely 90% of the reason she's listed on these. Frankly this kind of behavior is insulting to the other named inventors that actually did the work, but what recourse do they have? Is battling the CEO to get her name off a filing worth leaving your job for?

> My impression is that the "inventor(s)" have to be the people who actually came up with the idea.

(Inactive) patent attorney here. Your impression is correct (for the U.S.; I can't speak to other places): ALL "co-inventors" MUST be listed as inventors, and ONLY they may be listed. A "co-inventor" is someone who contributes to the "conception," i.e., the complete mental picture, of the subject matter of at least one claim in the patent application. [0]

[0] https://en.wikipedia.org/wiki/Inventor_(patent)

Good to know. I've known a CEO who deliberately altered all the patents from his startup to put his name (and only his name) as inventor, rather than, say, people who actually any clue what the patent was about.

That's right. I'm not a patent lawyer, but one has told me that to be listed as an inventor, you have to be an inventor. Now, if the patent has multiple claims, you only have to be responsible for one of them.

People did figure it out though.

Patents aren't a peer-reviewed academic journal. They're just a way to gain exclusive rights to an idea for a period of time, whether or not that idea pans out. If I am doing competition research, it's not to determine the feasibility of the patents, but rather if I will get sued if I attempt to build my idea. My incentive is not to validate their work, but rather my liability.

Furthermore, if she's got patents on these processes, can she wield them against anyone who tries to implement them successfully?

She could try, but the patents might be found to be 'non-enabling' and thus invalid. Patents are supposed to teach a reader how to make the invention.

In particular, it seems that the microfluidics stuff needs new inventions to make it work in practice. So presumably those aren't described in the patents. Although it wouldn't be the first time that management overlooked solutions provided by their own researchers.

Are patents _required_ to teach a reader how to make the invention? That seems like an interesting requirement that I hadn't heard of before, and I've got a patent with my name on it myself.

35 U.S.C. § 112(a) ...

> The specification [of the patent] shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same

It's the raison d'etre of patents. A time-limited monopoly in exchange for full documentation of the invention for the long term public good.

Huh. Thanks for including the relevant part of the US Code. I'll be honest, I had no idea it was a requirement. I've read plenty of patents where the patent definitely would not function to let someone build the invention in question. I wonder how strictly this is enforced.

Yes that's the entire point of patents. To pay people for sharing their ideas with others. If your patent can't do that you don't get paid.

the deal was: you document your invention for the good of humanity and we give you a 25 years exclusivity. It was an encyclopedic endeavor.

It's worth noting that patents cover a particular method and not its result.

If the method would work in general, then yes, the inventor with the patent can wield them against anyone who implements that method - even if the inventor wasn't able to build the apparatus due to expense or difficulty; that's part of the original goal of patents, so that the inventor can fundraise for building the device without the funders just building it themselves after being convinced that it will work.

If the method is bullshit and can't be used to achieve the intended goal, then the patent can't be used against someone who succeeds, since they would succeed with a substantially different method that's not covered by the patent.

"having" a patent is different from "assigning" a patent. I haven't read through all of them but having your name on a patent is more a prestige thing and very difficult to monetize. There are exceptions to this, however.

Whoever ends up liquidating Theranos will be in a position to make a call with licensing and enforcement, assuming, of course, they don't let the patents lapse (which is probably a shorter timeframe than a complicated bankruptcy will take).

Letting the patents lapse is a deliberate strategy sometimes (it's more a defensive rather than offensive approach, to block other actors from blocking you from your own technology).

I'm not a patent lawyer, but I have several patents. From my standpoint, the prestige thing is of potential value because it means I'm capable of coming up with inventions that someone is willing to spend tens of $k's to patent. In other words, my idea put a smile on some manager's face.

It's also an alternative to peer-reviewed journals for "publishing" your ideas.

Act II: Patent Troll

These days they get patent for just about anything. Elon Musk patented Tesla Model S’ looks by presenting sketches to the patent office. A UX designer who works close to my office patented the graphical layout of a reporting software. She got a US design patent for that.

What wonders me in this story is how many investors have been duped into this fallacy, without proper due diligence, checking the supposed contracts and so on. If I was an investor in a VC fund, I would have sued the investment managers for negligence on their part.

Shows how broken the USPTO process is... You can pay a lawyer a nice chunk of change and patent whatever. Then you can hire some more lawyer/trolls to go out and sue people who infringe on your patent.

I've got a patent on a fusion reactor... If my tech doesn't work I wish someone would let me know and save me the trouble of all the hard work to build it :)

Conversely, If the tech does work, I hope someone infringes me and saves me the trouble of all the hard work to build it ;)

I’m not entirely convinced what they were trying to is impossible. More that they went about it in a preposterous way.

Does anyone else hear the Carmagnole drums beating through the headlines?

You can patent pretty much anything. The USPTO runs open-loop. A patent examiner will face zero consequences for approving trivial, obvious, unoriginal, or otherwise invalid claims, but they will face real consequences for rejecting them, in the form of additional workload.

Their philosophy can best be summarized as, "Rubber-stamp 'em all and let the courts sort 'em out." We all get to pay for that.

There's uBeam, the company trying to charge devices using ultrasound. Apparently it's still hard to tell from the outside if this is going to work. https://en.wikipedia.org/wiki/UBeam

Or Magic Leap https://en.wikipedia.org/wiki/Magic_Leap

> In December 2017, UK IT news site, The Register, reported that Magic Leap is a vaporware company that "has received nearly $2bn in funding over four years, values itself at $6bn, and has yet to produce anything but fake technology."

> On March 7, 2018, Magic Leap raised $461 million in Series D funding led by the Public Investment Fund of Saudi Arabia, the country's sovereign wealth fund.[25]

Half a billion dollars for vaporware?

But there are lots of fun ways to spend your money: https://en.wikipedia.org/wiki/Cal_3

> Cal 3 is a state ballot initiative to split the U.S. state of California into three states. It was launched in August 2017 by Silicon Valley venture capitalist Tim Draper.

Reminds me of my favorite ever Richard Pryor joke: "Cocaine is Nature's way of telling you, 'You have too much money.'"

Patenting doesn't automatically convert into production, customers, and sales.


Maybe not all 200 are fraud ...

I wonder why there hasn't been a media outcry like with Kenneth Lay, Jeffrey Skilling, Richard Scrushy, et al. People wanted those scoundrels drawn and quartered, but no one's calling for her head. Is it because of her sex?

Probably because the people who have lost money on Theranos are rich investors, not the "regular folks" who invested too much of their 401ks in Enron, nor did Theranos cheat people like how Enron gouged old Californians on their electric bills by intentionally shutting down power generation.

Maybe you should read different information sources. I've seen nothing but praise for the WSJ reporter and his new book.

Well it only seems fair that she got so much positive media coverage for her start up simply because of her sex.

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