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


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  • identicon
    Anonymous Coward, 3 Apr 2020 @ 2:44pm

    a two-way communication system for

    Along with with 'on a computer system' and 'using two way communication' should be recognized by the patent office as generic. While getting to and from the electronic domain at the sensor and activator level may involve patentable technology, using a computer or communication system is nothing new once you have your sensor or actuator.

    reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 3 Apr 2020 @ 4:39pm

    I look forward to the day when

    Machine learning "on a computer" is used to invalidate "on a computer" patents. 🤖 ⚔️ 🤖

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 3 Apr 2020 @ 5:51pm

    Leeches gonna leech

    It sure would be nice to find a (legal) way to make these scumbags lives miserable. (beyond invalidating the patents) Perhaps start investigating them closely to see what other nefarious shit they are up to.

    reply to this | link to this | view in chronology ]

    • icon
      Norahc (profile), 3 Apr 2020 @ 7:22pm

      Re: Leeches gonna leech

      I'd be satisfied if in a patent suit, they started out the case assuming the patent was invalid and making the plaintiff prove otherwise first (beyond the fact a patent was issued).

      Given how lackadaisical the USPTO has been in issuing these types of patents, it seems like a way to streamline this whole process.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 3 Apr 2020 @ 7:52pm

    That sound you hear is Hamilton, Tero Pulkinnen and Slonecker grinding their teeth in righteous anger.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 4 Apr 2020 @ 4:21am

    Why yes, you ARE the bad guys

    You know that you have really reached the peak of being a disgusting person/company when people put together contests to undermine you by pointing out that your 'inventions' are anything but.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 4 Apr 2020 @ 11:26am

    Taking Advantage of CR

    Isnt it strange, that for some reason If someone pays attention to an Stupid CR, that it gains credibility.
    Its also a great way to Fake the Whole process.
    Create a ?? CR, then sell it around, even to other fake companies. It gains a reputation as being REAL. Then Add to it, different alternatives/concepts and make it bigger then it is. Start suing as a 3rd party with little access to the original, and win a few court cases from Judges not paying attention. And you have a CR thats bullet proof.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 4 Apr 2020 @ 2:37pm

    Why PTO approves this crap

    PTO approves this crap because it's what the job requires.

    Let's say someone files for "A device for conversion of a solid fuel to light by self-heated melting of the fuel and conduction of the melted fuel to a point of vaporization by capillary action." (Clue: It's a candle.)

    The examiner, dumber (yes, dumber) than most, suffers a momentary fit of laughter and rejects the filing. What will ensue is called a challenge, and the examiner will spend hundreds of hours filling out paperwork, answering questions, and running to court...with the end result that the filing will get approved anyway, in all likelihood.

    Is the examiner to paid do this? The real answer is, "No." The examiner is paid to review filings; his productivity is measured by the number of filings he reviews.

    And while he's involved in the challenge, he's not reviewing filings. So his productivity sucks and -- assuming he doesn't get fired for bad productivity -- he will miss pay increments, which means he gets poorer.

    Poorer...does he get wiser? If he does, he becomes one of the smarter examiners: when he gets a crap filing he shakes his head and soldiers -- approved.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2020 @ 6:55am

    USPTO makes money by approving patents. Approve more patents, make more money.

    reply to this | link to this | view in chronology ]


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