In the wake of a global pandemic of a relatively unknown virus, COVID-19 a.ka. the coronavirus, one company is trying to have testkits pulled from the market. That company is called Labrador Diagnostics. Labrador bought several patents from a company called Softbank, who in turn bought them from a company called Theranos. Theranos is best known as the company that claimed to have invented a new and expedient kind of blood test that turned out to be a complete fraud. However, Labrador is insisting that coronavirus-testkit manufacturer and developer, BioFire, has infringed on its patents acquired from Theranos and is asking for an injunction of the sale of the testkits.
As a matter of public policy, this is dangerous. All other forms of property have temporary limits for emergency purposes, so it makes sense that patents should as well. Additionally, Labrador could simply ask for reasonable royalties, request negotiations for a sale of the patent, set up a patent pool for pandemic response, or attempt to market the testkits themselves in good faith. Instead of any of these sane responses to a global health crisis, Labrador has chosen to ask for an injunction on the sale of a product preventing millions of deaths. From a legal perspective, Labrador's request for an injunction certainly fails the eBay v. MercExchange standard needed for an injunction given the public need for testkits right now. However, there is a deeper problem--this Theranos patent, at least in certain aspects, is gibberish. One key patent in question is "Point-of-care fluidic systems and uses thereof"(US8283155B2). One key element of Claim 1, element b, reads "an external device configured to transmit a protocol to the communication assembly ". Unless this "external device" is literally building a new world-wide-web or alternative like Gopher, it can't "transmit a protocol." Protocols, in a Computer Science context, are how computers share data with each other. Data is transfered with protocols; the protocols are not transfered themselves. This reads like gibberish. The gibberish doesn't end there--Claim 30 of this patent seems to be gibberish too. There are many things that are strange about claim 30 such as nested 'comprising' terms without the phrase 'further comprising', but the biggest oddity of claim 30 is the phrase "wherein said protocol in turn effects a selection of at least one assay from said plurality of assays to be run with said assay assembly for generating said signal." 'Effect' is a noun 99% of the time in English, and this is a rare instance of it being used as a verb in a formal document. The use of 'effect' as a verb is important here because it is quite different from 'affect.' 'Affect' means to influence, but 'effect', as a verb, means to achieve. How could the mere selection of an assay, which is dictated by a processing algorithm according to the spec, be regarded as a specific achievement? Perhaps the author meant to say "affects a selection", which means that it causes the correct assay to take place, but it is really unclear. Last, but not least, I want to point out that Labrador Diagnostics' recent actions are really bad for Patent Law in so many ways. First of all, it hurts Patent Law's image with the general public. Patents serve an extremely important purpose--to incentivize the disclosure of innovations. Right now, a growing portion of the general public is turning against patents because of companies like Labrador Diagnostics who are egregiously abusing a system with almost psychopathic regard to society, and much of the public doesn't see the benefit that patents provide. Secondly, it weakens the patent system for everybody else.
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