SoftBank Owned Patent Troll, Using Monkey Selfie Law Firm, Sues To Block Covid-19 Testing, Using Theranos Patents

from the and-that's-not-even-all-the-insane-parts dept

Honestly, I wasn’t sure how to begin this story or how to fit all the insanity into the title. It’s a story involving patents, patent trolling, Covid-19, Theranos, and even the company that brought us all WeWork: SoftBank. Oh, and also Irell & Manella, the same law firm that once claimed it could represent a monkey in a copyright infringement dispute. You see, Irell & Manella has now filed one of the most utterly bullshit patent infringement lawsuits you’ll ever see. They are representing “Labrador Diagnostics LLC” a patent troll which does not seem to exist other than to file this lawsuit, and which claims to hold the rights to two patents (US Patents 8,283,155 and 10,533,994) which, you’ll note, were originally granted to Elizabeth Holmes and Theranos — the firm that shut down in scandal over medical testing equipment that appears to have been oversold and never actually worked. Holmes is still facing federal charges of wire fraud over the whole Theranos debacle.

However, back in 2018, the remains of Theranos sold its patents to Fortress Investment Group. Fortress Investment Group is a SoftBank-funded massive patent troll. You may remember the name from the time last fall when Apple and Intel sued the firm, laying out how Fortress is a sort of uber-patent troll, gathering up a bunch of patents and then shaking down basically everyone. Lovely, right?

So, this SoftBank-owned patent troll, Fortress, bought up Theranos patents, and then set up this shell company, “Labrador Diagnostics,” which decided that right in the midst of the Covid-19 pandemic it was going to sue one of the companies making Covid-19 tests, saying that its test violates those Theranos patents, and literally demanding that the court bar the firm from making those Covid-19 tests.

A bit more background here: the company they’re suing, BioFire, recently launched three Covid-19 tests built off of the company’s FilmArray technology. And that’s what “Labrador” (read: SoftBank) is now suing over. From the lawsuit:

The Accused Products embody at least claim 1 of the ‘155 Patent, literally or under the doctrine of equivalents, as set forth below. The further descriptions below, which are based on publicly available information, are preliminary examples and are non-limiting. On information and belief, the FilmArray 2.0, FilmArray EZ, and FilmArray Torch devices operate, together with the FilmArray pouches and software, similarly as pertinent to the non-limiting examples set forth below. On information and belief, the FilmArray EZ operates in substantially the same manner as the FilmArray 2.0, and as such is not separately addressed below. For the purposes of infringement, Plaintiff Labrador’s non-limiting examples relating to the FilmArray 2.0 are equally applicable to the FilmArray EZ, albeit with use of at least the RP EZ Panel designed for use with the FilmArray EZ. See BioFire Diagnostics Website, https://www.biofiredx.com/products/the-filmarraypanels/ filmarray-respiratory-panel-ez/.

So, let’s summarize: The firm that basically created the mess that is WeWork by dumping billions of dollars into the company, also owns a patent troll that bought up the patents from the sham medical testing firm Theranos, and is now using those patents to sue one of the few diagnostics companies that is actually making a Covid-19 test… in the middle of a pandemic. And, demanding the use of those tests be blocked:

That Defendants be enjoined from infringing the Asserted Patents, or if their infringement is not enjoined, that Defendants be ordered to pay ongoing royalties to Labrador for any post-judgment infringement of the Asserted Patents;

Honestly, I’m used to all sorts of awfulness, but this one piles awfulness upon awfulness, and takes it to a level of pure evil. The lawyers filing this lawsuit on behalf of “Labrador” should remember what they’ve done — filing a bullshit patent trolling lawsuit, on behalf of a shell company for a notorious giant patent troll, using patents from a sham company, and using them to try to block the use of Covid-19 diagnostic tests in the middle of a pandemic. I wonder how they sleep at night. For the record, there are two law firms behind this filing. Irell & Manella is the big one, and they list out 7 different lawyers on this complaint: Morgan Chu, Alan Heinrich, Keith Orso, Adina Stohl, Dennis Courtney, Brian Weissenberg and Chaplin Carmichael. Their local firm is Farnan LLP, and the lawyers there are Brian and Michael Farnan. Morgan Chu is the big shot at Irell and runs its litigation group. He should take on much of the responsibility for this awful, awful lawsuit. Farnan LLP was formed by a former federal district court judge, Joseph Farnan, and I’ll just note that 4 out of its 6 attorneys, including the two on this case have the same last name.

I understand the need for zealous representation of a client in court, but this seems even more despicable than your every day patent trolling, and people should associate these lawyers names with the truly despicable behavior on display here. Similarly, it should be a reminder of why its a good thing that the Supreme Court decided a decade and a half ago that injunctions are often inappropriate in patent cases. I know that there’s an effort underway to have Congress change the law to overrule the Supreme Court decision on that point, but imagine how that would play out in this scenario, in which necessary diagnostic testing might get blocked due to some patent troll with deep pockets.

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Companies: biofire, biomerieux, farnan llp, fortress investment group, irell & manella, labrador diagnostics, softbank

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Comments on “SoftBank Owned Patent Troll, Using Monkey Selfie Law Firm, Sues To Block Covid-19 Testing, Using Theranos Patents”

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That One Guy (profile) says:

No 'your money OR your life' but 'Your money AND their lives.'

It takes a truly special kind of scum to decide that the best time to try to shake someone down is in the middle of a medical crisis, and the best target for that is a company trying to provide tools to help in said crises.

I’d say name and shame until they slink back into the cesspits they crawled from but if this is what they consider acceptable work I can only assume that they are literally incapable of feeling shame, so instead show the world how utterly vile they are in the hopes that no-one in the future is insane enough to want to have anything to do with them.

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That One Guy (profile) says:

Re: Re: No 'your money OR your life' but 'Your money AND their l

That’s the thing though, much like SLAPP suits the point of patent extortion isn’t to win in court(and in fact patent trolls tend to run like the cowards they are when faced with actual opposition), it’s to make it too expensive for the other side to keep fighting, and/or punish them for doing something, such that they either pay up or shut up for patent extortion and SLAPP suit respectively.

BestEfforts (profile) says:

Re: No 'your money OR your life' but 'Your money AND their lives

Biomeriux /Biofire are hypocrites. They are suing another covid-19 testing manufacture who has the capability to test with results within 1-3 hours.

https://www.genomeweb.com/business-news/jury-rules-favor-hologic-grifols-biom-rieux-patent-infringement-lawsuit#.XnUHmi2ZNp8

How is Fortress / Labrador " literally demanding that the court bar the firm from making those Covid-19 tests" if they’re offering a free license on anything related to cover-19 testing?

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David says:

So what?

Oh, and also Irell & Manella, the same law firm that once claimed it could represent a monkey in a copyright infringement dispute. You see, Irell & Manella has now filed one of the most utterly bullshit patent infringement lawsuits you’ll ever see. They are representing "Labrador Diagnostics LLC" a patent troll which does not seem to exist other than to file this lawsuit,

Look, filing a copyright suit for a monkey and filing a patent infringement lawsuit for a Labrador are not all that much different.

I’d not be surprised if they represent the trademark interests of a caterpillar. Wait, that one’s taken already.

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Anonymous Coward says:

Also issue of getting live virus samples to develop tests

CDC made a synthetic Ebola virus to test treatments. It worked

https://www.statnews.com/2019/07/09/lacking-ebola-samples-cdc-made-a-synthetic-virus-to-test-treatments-it-worked/

…also raise questions about why outside research groups have not received direct access to viral specimens from the DRC and instead had to create a synthetic version. The paper noted that there have been no Ebola samples available to the scientific community from the past four outbreaks in the DRC. Those outbreaks occurred in 2014, 2017, and 2018.
.

Anonymous Coward says:

Re: Also issue of getting live virus samples to develop tests

Ebola is a potential bioweapon and allowing regular scientists to study live samples of it would be criminal. The exact same thing should be true of Covid 19 but since it is so widely spread, we can expect countries and individuals to save it and spread versions for decades to come.

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Anonymous Coward says:

Gov. Won't share coronavirus pathogens to develop tests

The 4 Key Reasons the U.S. Is So Behind on Coronavirus Testing

Bureaucracy, equipment shortages, an unwillingness to share, and failed leadership doomed the American response to COVID-19.

https://www.theatlantic.com/health/archive/2020/03/why-coronavirus-testing-us-so-delayed/607954/

2.Hard-to-Get Virus Samples

Labs and companies need samples of the virus itself in order to make their tests, but delays in getting access to samples further slowed down the test-development process. The coronavirus originated in China, and as several microbiologists told me, the Chinese government does not allow specimens to be shipped outside its borders.

Many researchers have had difficulty getting their hands on samples even as the virus has spread.

Miller said it would help if researchers, governments, and companies firmed up pathogen-sharing contracts in advance of an outbreak, but so far that hasn’t happened. “The problem is that in the past, industry has been viewed as this dirty participant in all of this, and we can’t be trusted, and why would I have contracts with you?” Miller says. “But that’s ignoring the plain fact that we’re the ones that create the product in the end.”
.

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Anonymous Coward says:

Patents for genetic sequence

Why a Saudi Virus Is Spreading Alarm

A new virus discovered in Saudi Arabia is raising deep concerns over its lethality. An intellectual property dispute could be impeding efforts to contain it, writes CFR’s Laurie Garrett.

Expert Brief by Laurie Garrett

May 29, 2013

https://www.cfr.org/expert-brief/why-saudi-virus-spreading-alarm

However, Chan called upon the gathered delegates at the World Health Assembly to stand against intellectual property blocks to epidemic responses. The question of ownership of discovery has become the top wedge issue in global health today….

"The virus was sent out of the country and it was patented, contracts were signed with vaccine companies and anti-viral drug companies, and that’s why they have a MTA [Material Transfer Agreement] to be signed by anybody who can utilize that virus, and that should not happen," Memish said.

Though Memish referred to a "patent," the Dutch team has not patented the viral genetic sequence but has placed it under an MTA, which requires sample recipients to contractually agree not to develop products or share the sample without the permission of Erasmus and the Fouchier laboratory. Memish said that the Dutch MTA was preventing Saudi Arabia from stopping the MERS-CoV outbreak, which appears to have started eleven months ago in the Eastern part of his country. The Dutch team denies the MTA is slowing work on the outbreak, saying it has given virus samples to any lab that has requested it.

Courts in North America and Europe have ruled that it is possible to patent life forms or their genetic sequences, spurring the practice of claiming patent control on newly identified microoganisms. Such patents give owner rights over royalties on all products derived from the genetic sequence, including vaccines, diagnostics, and genetically targeted treatments. But they have spawned controversy outside of wealthy countries, since they are perceived as guaranteeing profits for Western pharmaceuticals at the expense of country-of-origin use and access.

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Anonymous Coward says:

HHS filed lawsuit based on Materials Transfer Agreement

HIV PrEP Patent Dispute Escalates As HHS Files Suit Against Gilead

https://pharmaintelligence.informa.com/resources/product-content/hiv-prep-patent-dispute-escalates-as-hhs-files-suit-against-gilead

In a lawsuit filed on 6 November, the Department of Health and Human Services is seeking to compel Gilead to license the government’s four patents issued in 2015 related to for HIV prevention.

HHS argues that Gilead is willfully infringing the HHS patents by not licensing the intellectual property created through taxpayer-funded PrEP research conducted by the Centers for Disease Control (CDC), according to the lawsuit, filed in the US District Court for the District of Delaware.

Gilead disputes the allegations in a statement about the lawsuit, reiterating claims it made in August when it asked the US Patent and Trademark Office (USPTO) Patent Trial and Appeal Board (PTAB) to conduct an inter partes review of the HHS patents.

“We strongly believe that the patents granted to HHS since 2015 for PrEP and [post-exposure prophylaxis (PEP)] are not valid and reject any notion of willful infringement,” Gilead said on 7 November. “HHS improperly filed for patents without alerting Gilead, despite its obligation to do so, and we have openly explained the defects in the patents since becoming aware of them.”

The company, which said it will ask the district court in Delaware to stay the HHS lawsuit until after the inter partes review, argued that there is “compelling evidence” showing that others considered the idea of using antiretroviral therapy for PrEP and PEP long before the CDC claims to have invented the prophylaxis strategy in 2006. This prior art was not disclosed in the patent applications for the four HHS patents, Gilead noted.

The HHS lawsuit notes that Gilead agreed in a material transfer agreement for CDC PrEP studies in 2004 that it would license patents related to the studies’ findings. And contrary to the company’s claims, the HHS complaint says, Gilead was informed in of the CDC’s intent to seek patents for its research findings – that combinations of emtricitabine and tenofovir or prodrugs of tenofovir, such as TDF in Truvada, are effective in preventing HIV in primates and at-risk humans.

The lawsuit details the timelines for the CDC studies and findings as well as the publication and presentation of the studies’ results. Those publications and presentations noted in as early as 2006 that researchers involved in the studies intended to patent their findings.

HHS Secretary Alex Azar acknowledged Gilead’s efforts to sell Truvada and Descovy, which has reduced the spread of HIV and saved lives in the US, in the department’s statement about its lawsuit. However, Azar said Gilead must respect US patent laws and the CDC researchers’ “groundbreaking work.”

.

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Anonymous Coward says:

Patent application for coronavirus

Whole-genome patenting

https://www.nature.com/articles/nrg1613?proof=true

News of genome patenting is often met with surprise, disbelief or dismissal. Nevertheless, several whole-genome patents have been issued by the US Patent and Trademark Office (USPTO) and further applications are pending. Although gene patenting has been challenged on ethical grounds and in regard to data access and criteria for patentability1,2,3, whole-genome patenting has so far gone almost unnoticed. Even the recent controversy surrounding patent applications for the genome sequence of the SARS-associated CORONAVIRUS4,5 (see also Online links box) is primarily concerned with whether patenting is an appropriate and effective way to control access to data and stimulate research.

.

bhull242 (profile) says:

Re: Patent application for coronavirus

True, but completely irrelevant, since this article has nothing to do with that specific patent or that specific strain of the coronavirus (which is a broad category that includes many, many different viruses and virus strains capable of causing colds and/or flus, of which COVID-19 is just one, and the “SARS-associated Coronavirus-4,5” is a very different one). Additionally, the patent(s) mentioned in this article don’t actually involve patenting genes at all.

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wereisjessicahyde (profile) says:

Re: Patents for coronavirus

Yes, it’s true an application does exist, "Coronavirus US-Patent 10130701, 2015" which is for a completly coronavirus different virus.

A patent application from 2015 does exist for one type of coronavirus, but not the same one as the new one identified in Wuhan, which has now been named Covid-19.

Coronavirus is a broad category of viruses that includes the common cold, SARS, and Covid-19.

The patent number mentioned here refers to a “live attenuated” version of the avian infectious bronchitis virus (IBV).

Live attenuated IBV is essentially a weakened version of the virus, patented with the aim of eventually developing it into a vaccine against the disease for birds and other animals.

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Anonmylous says:

Crap patents

These look to me (IANAL disclaimer) like they cover everything from diabetic testing devices to pregnancy tests. Overbroad, vaguely worded bullshit from a company that never had any intention of creating anything. Literally biological testing "on a computer" type drek.

We need to require these things to be written by people with a 5th grade education. Preferably actual 5th grade children. If you can explain how the device works so the child can understand it and write out how it works and what it does so even a patent clerk can then understand it, you get your patent.

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That One Guy (profile) says:

Re: Re:

Unfortunately and insanely enough as noted in the article there are people looking into changes to the patent system, but for the worse.

Similarly, it should be a reminder of why its a good thing that the Supreme Court decided a decade and a half ago that injunctions are often inappropriate in patent cases. I know that there’s an effort underway to have Congress change the law to overrule the Supreme Court decision on that point, but imagine how that would play out in this scenario, in which necessary diagnostic testing might get blocked due to some patent troll with deep pockets.

Hopefully the next time someone brings up the disastrous idea someone points them to this, and rightly points out how it would take a problematic system and make it so much worse, at times to lethal results.

This comment has been deemed insightful by the community.
Tim R (profile) says:

I don’t think I could ever even come close to understanding claim construction. I can’t wrap my brain around somebody suing for infringement because something violates one or more claims on a patent.

As a layperson with no legal experience, just common sense, it just seems like in the real world, you’d only be able to sue over something that violates ALL claims in a patent, and nothing less.

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Darkness Of Course (profile) says:

Patent fluff

Read them, quite a bit of copy paste as they’re both based on the failed first principle beliefs of Theranos. While our poor abused baritone CEO of nothing laments her life choices, she had some interesting ideas.

First recall she was excited about microfluidics, specifically that it would be possible to break up one drop of blood to run a multiple set of tests on it. Sad fact not found until later: A blood sample of several test tubes contains many drops, but a single drop does not capture the essence of all the test tube contents.

So, using a membrane in a mobile testing device is one claim. Current IP BS Theory says making shit up is just as good as having an actual prototype. I believe these patents could make a solid case for denying patents until the fucking prototype actually works.

Which, might have saved a lot of people a lot of money re that baritone CEO awaiting the hammer blow to her ego as her device has never worked, as far as I can determine.

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That Anonymous Coward (profile) says:

sits back with the popcorn

IP our most valuable asset, matters more than testing in a pandemic.
In a functioning society people might point to this as being a great time to consider perhaps we’ve gone to far in "protecting" IP.
But then a cartoon mouse being under copyright until the end of the world is much easier to do when the world might be ending.

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FakChecka (profile) says:

The answer to this is as easy as "ABC"

Remember "ABC" – Anthrax, Bayer, and Cipro

During the 2001 Anthrax scare, Bayer tried to block generic versions of its anti-anthrax Cipro (ciprofloxacin) antibiotic, prompting calls for the US government to suspend Bayer’s patents under 28 USC 1498. In the end, Bayer beat a hasty retreat and plenty of Cipro became available. This troll should get the full treatment. If there is a single Theranos patent that’s actually valid and enforceable, that is.

http://www.cptech.org/ip/health/cl/cipro/ – info here, though many links are dead-ends now.

DaveT (profile) says:

WeWork

I agree with the overall point about the patent troll, but the author does his credibility no favors with lines like "the company that brought us all WeWork: SoftBank".

SoftBank first invested in WeWork in March 2017. Prior to SoftBank’s investment, WeWork had been in business for about 7 years. WeWork had already raised (pre-SoftBank) a total of about $1.7 billion, with the last round at a $16 billion valuation. Those prior investors in WeWork included well-known firms such as Benchmark, Goldman Sachs, JP Morgan Chase, and T. Rowe Price.

SoftBank didn’t change WeWork’s business model, and it wasn’t an early investor. It was just one of the last investors in on a business concept with severe problems.

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