A lawsuit filed in US federal court last week by a notorious patent troll seeks to block the use of new coronavirus tests in the United States over an alleged case of patent infringement.
In a filing that may one day win some kind of award for being the worst possible idea at the worst possible time, an unknown firm named Labrador Diagnostics has sued BioFire Diagnostics LLC and its parent company, the French manufacturer BioMérieux. Last week, BioMérieux announced that it had completed testing on a real-time PCR test for SARS-CoV-2 and had clinically validated the model. The company has already submitted the test to the FDA for emergency authorization.
Enter Softbank. Yes, the same company that brought us WeWork. Evidently this is what failing upwards looks like. Softbank owns Fortress Investment Group, which it purchased for $3.3B in 2017. In 2018, Fortress announced that it had raised $400M to acquire intellectual property so it could start suing tech companies for IP infringement. Both Intel and Apple sued Fortress in the fall of 2019, alleging that various firms with connections to Fortress were attempting to shake them down for billions of dollars.
I don’t see what the big deal is. Dog looks fine to me. Image by Wikipedia
How do we know that Labrador Diagnostics is linked to Fortress? Because the specific patents Labrador is asserting were part of Theranos’ IP, which Fortress Investment Group bought in 2018.
(The line, in other words, is not exactly subtle).
BioMérieux is currently developing three SARS-CoV-2 tests, including a fully-automated version it’s building in collaboration with the Department of Defense. This is the company SoftBank’s subsidiary has targeted for patent trolling.
The definition of “late capitalism” or “late-stage capitalism,” according to The Atlantic, is “a catchall phrase for the indignities and absurdities of our contemporary economy, with its yawning inequality and super-powered corporations and shrinking middle class.”
Earlier this year, I wrote a story discussing how the concept of ownership is increasingly optimized for corporations, not human beings, and linked it to the concept of the absurd as described above. Would to God that an event like this merely qualified as absurd, as opposed to potentially deadly. This lawsuit was filed on March 9, 2020. BioMérieux didn’t even announce the tests to the public until Wednesday, March 11.
From the lawsuit:
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;
Issuing an injunction against a biological assay would prevent the assessment from being carried out. Effectively this is equivalent to asking BioMérieux to pull the test or agree to pay royalties on the spot.
“Labrador Diagnostics” — the company has no online presence or corporate history as far as I can tell, save for references to this lawsuit — has perhaps failed to read the room more than any corporation in history. Or maybe it didn’t. It’s entirely possible that these lawsuits were filed as part of a calculated effort to bring BioMérieux to the table, under the assumption that the company would settle quickly to avoid its tests being delayed.
Regardless, we have arrived at a point where the humans at Fortress or Labrador Diagnostics decided it was morally acceptable to sue a French firm over patent infringement over a coronavirus test, while stating that banning the test from use constituted an acceptable form of injunctive relief.
Injunctions are rarely granted in patent cases and I don’t expect one to be granted here. But moments like this demonstrate, with stunning clarity, exactly how greedy — and fundamentally short-sighted — companies can be. At some point in the discussion, possibly between the “Can we sell the families of Covid-19 fatalities into slavery?” segment and the next IPO pitch (“Water: A Luxury Humans Will DIE to Pay For”), someone ought to have pointed out the not-insubstantial risk of being completely and utterly evil at a time when people are panicked and very few Americans, including sick Americans, have been able to be tested.
I won’t try to predict whether the lawsuit is valid, though I trust any IP acquired from Theranos about as much as I’d trust a man who told me he’d invented a living squid hat that crapped gold doubloons. But whether it raises a valid legal issue or not, “Labrador’s” lawsuit is perhaps the worst-timed legal fusillade in history. Given the already terrible reputation patent trolls enjoy with everyone who isn’t a patent troll themselves, this might be the anvil that breaks the back of an entire predatory business method. We can but hope.
Current WHO guidelines for testing as of May 16, are: “We have a simple message for all countries: test, test, test. Test every suspected case.” I have read the guidelines carefully. There is no provision for any additional funding to be spent lining the pockets of corporate vultures. Oversight, I’m certain.
Someone might want to call Labrador — excuse me, “Labrador” — and let them know. TechDirt has additional details on the case.
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