[Ip-health] Patent Troll Files Lawsuit to Block Possible Coronavirus Diagnostic

kathryn ardizzone kathryn.ardizzone at keionline.org
Mon Mar 16 15:15:53 PDT 2020


Global health emergencies such as the COVID-19 pandemic call upon us to
answer to the better angels of our nature. Not all are heeding that call.
Instead of cooperation and selflessness, some view the pandemic as an
opportunity for profiteering.

Take, for example, this lawsuit
<https://files.lbr.cloud/public/2020-03/BioFireFortressComplaint.pdf?KgyJNvx_XNJemjElQUms6DJOFT5Nhc9v=>
filed by a biotech patent troll in relation to technology that can be used
to diagnose the coronavirus.

In the Complaint, filed on March 9, 2020, Labrador Diagnostics alleges that
BioFire Diagnostics and bioMerieux S.A. are infringing on two of its
patents by “making, using, offering to sell, and selling within the United
States [etc.]” certain products associated with defendants’ FilmArray
System.

The System encompasses products such as the BioFire FilmArray Pneumonia
Panels, which “aids in the diagnosis of lower respiratory tract infections”
and “identifies 33 targets (18 bacteria, 8 viruses and 7 antimicrobial
resistance genes)” and the “Pneumonia Panel plus,” which “includes the same
targets with the addition of the MERS-CoV emergent virus.”

COVID-19 is most dangerous when it reaches the lower respiratory system.

The two patents at issue are U.S. Patents No. 8,283,155
<http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/search-bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/8283155>,
entitled “Point-of-care fluidic systems and uses thereof” (“the ‘155
patent”) and 10,533,994
<http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=10,533,994&OS=10,533,994&RS=10,533,994>,
“Systems and methods of sample processing and fluid control in a fluidic
system,” (“the ‘994 patent”).  Both patents list Elizabeth Holmes as an
inventor and Theranos as the assignee.

The “Prayer for Relief” alleges that “Defendants have infringed, and unless
enjoined will continue to infringe, each of the Asserted Patents[.]” If
Labrador prevails and is granted an injunction, an FDA-approved diagnostic
that can aid in tracking the spread of the coronavirus will be unavailable
to help mitigate the crisis.

This lawsuit illustrates why proposals to change current injunction
standards for patent infringement, such as that of the STRONGER Patents
Act, should be rejected. On September 11, 2019, KEI addressed a letter
<https://www.keionline.org/31622> to Senator Christopher Coons explaining
why the STRONGER Patents Act’s language to lower the current injunction
standards was ill advised.

Under the current standard, set forth in the 2006 Supreme Court case *eBay,
Inc. v. MercExchange*, a patent holder seeking an injunction must prove an
irreparable injury, the lack of other adequate remedies at law, that the
balance of hardships favors granting an injunction, and that the public
interest would not be harmed by the remedy.

The STRONGER Patents Act would stack two of those four criteria in the
plaintiff’s favor by creating a presumption of irreparable injury and the
inadequacy of available remedies.


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-- 
Kathryn Ardizzone, Esq.
Counsel
Knowledge Ecology International
1621 Connecticut Avenue NW, Suite 500
Washington, DC 20009
kathryn.ardizzone at keionline.org
(202) 332-2670


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