Patent Troll Uses Theranos Patents to Sue Company Developing COVID-19 Diagnostic Tests

Patent trolls Fortress Investment Group are suing BioFire Diagnostics LLC, claiming that BioFire’s recently announced COVID-19 diagnostic tests were created with technologies that violate patents that Fortress obtained from Theranos in 2018.

Because of course they are. According to TechDirt’s excellent summary of the situation,

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.

Steranko Security System

Was rewatching Leverage for the umpteenth time the other day, and finally realized the Steranko Security System in “The Inside Job” was named after comic artist Jim Steranko.

Overall, I have a love/hate relationship with Leverage. I totally buy into the premise, but the writing was so weak in many episodes that the plots occasionally have ridiculous holes that should have been spotted.

One of my pet peeves is that there is more than one episode that revolves around the team stealing patents from companies. You don’t need to steal patents–patents are public and viewable by anyone, which the writers would have known if they’d spent half a second Googling or asking a random stranger on the street.

Those episodes could have been saved by having the crew steal trade secrets that are related to the patents, but nobody on the show apparently gave a crap.

(Yes, this error bugs me that much).

Magic Tricks and Intellectual Property Laws

The BBC has an examination of the intersection of magic tricks and intellectual property laws.

Magic has a long history of magicians both protecting their methods and ripping off the illusions and methods they can figure out.

There have been some pretty brazen examples in the past – perhaps none more so than the case involving the world-famous US magician Harry Kellar at the end of the 19th Century. He was so keen to work out how British magician John Nevil Maskelyne was doing his levitations, that he went to the show several times – armed with binoculars.

When that failed, he marched right up to stage at the key moment to take a peek. He still couldn’t work it out, and ended up bribing another magician at the theatre to provide him with sketches. Kellar performed this particular act around the world for years afterwards.

The article notes that for a number of reasons, magic tricks fall outside of most intellectual property laws. The obvious possibility is that how an illusion is created is a sort of trade secret, but in most countries it is incumbent about a company or individual to prevent a trade secret from becoming widely known which, the BBC notes, is a bit difficult for magicians giving regular public performances.

Magicians could seek–and a few have obtained–patents on their inventions, but of course the problem there is that the mechanism of the invention has to be published with the patent. The BBC cites on magician who did patent an illusion only to find that the legal costs for protecting the patent from infringers was too high to make this an effective strategy.

According to the BBC article, a Netherlands court found that while magic tricks themselves were not protected, the particulars of a given magician’s stage show potentially were.

In the United States, there is currently a pending lawsuit filed by Raymond Teller, of Penn and Teller, against magician Gerard Dogge. According to a Hollywood Reporter story on the lawsuit,

Teller accuses Dutch entertainer Gerard Dogge of ripping off his copyrighted magic piece called Shadows, putting it on YouTube as an illusion entitled The Rose & Her Shadow, and offering to reveal the secrets for $3,050. The litigation promised to help determine the level of protection that magicians have over their tricks, and to prevail, Teller would need to show that his trick is eligible for copyright protection and that Dogge’s piece is substantially similar. To do that, he’ll first need to perform the hard chore of showing that Shadows is “fixed in a tangible medium of expression from which the work can be performed,” as the U.S. Copyright Office requires.

Unfortunately, it looks unlikely that Dogge will actually show up for the civil trial, meaning the court won’t likely get to rule on the underlying copyright claims.

Is Intellectual Property Murder?

Kevin Carson has a provocatively titled article — Intellectual Property Is Murder — looking at the likely impacts of data exclusivity requirements on drug applications in India that are a result of trade agreements with the European Union.

“Data exclusivity” means that clinical trials conducted before marketing by the company that originally produced the drug cannot be applied to meet government safety or efficacy requirements for the generic version. Each separate company that wants to market a generic version of a patented drug will first have to conduct its own clinical trials as a precondition. That directly contradicts one of the arguments commonly put forward by patent apologists — that patents are an antidote to trade secrets because they require openness as a condition of obtaining a patent.

“Data exclusivity” is a death sentence not only for those in India who can’t afford to pay tribute to the owners of state-granted patent monopolies, but also for the people of such countries as South Africa and Brazil, where the availability of cheap medicine for treating HIV depends on the output of India’s generic drug industry.

Carson also does a nice skewering of traditional big pharma justifications for patent protection of medication (although some of his arguments are a result less of patent protection than the unintended consequences of the drug approval process).

James Boyle’s New Book ‘The Public Domain’

Yale University Press has just published James Boyle’s new book about the damage being wreaked by intellectual property laws, The Public Domain: Enclosing the Commons of the Mind. Boyle also has a website for the book at, where the book can be downloaded for free as a PDF (the book is available under a Creative Commons Attribution-Noncommerical-Sharealike license).

According to the web site,

Our music, our culture, our science, and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In The Public Domain: Enclosing the Commons of the Mind James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, why jazz might be illegal if it were invented today, why most of 20th century culture is legally unavailable to us, and why today’s policies would probably have smothered the World Wide Web at its inception.

. . .

With a clear analysis of issues ranging from Thomas Jefferson’s philosophy of innovation to musical sampling, from Internet file sharing and genetic engineering to patented peanut butter sandwiches, this articulate and charming book brings a positive new perspective to important cultural and legal debates, including what Boyle calls the “range wars of the information age”: today’s heated battles over intellectual property. Intellectual property rights have been viewed as geeky, technical and inaccessible. Boyle shows that, as a culture, we can no longer afford the luxury of this kind of willed ignorance.   The “enclosure of the commons of the mind” matters and it matters to all of us. “Boyle has been the godfather of the Free Culture Movement since his extraordinary book, Shamans, Software, and Spleens set the framework for the field a decade ago,” says Lawrence Lessig,  “In this beautifully written and subtly argued book, Boyle has succeeded in resetting that framework, and beginning the work in the next stage of this field. The Public Domain is absolutely crucial to understanding where the debate has been, and where it will go. And Boyle’s work continues to be at the center of that debate.”

Microsoft Receives Patent on Page Up/Down Functionality

I believe Om Malik was the first to point out that Microsoft has been awarded US Patent #7,415,666, “Method and system for navigating paginated content in page-based increments.” That’s right folks, Microsoft was granted a patent for page up and page down functionality,

A method and system in a document viewer for scrolling a substantially exact increment in a document, such as one page, regardless of whether the zoom is such that some, all or one page is currently being viewed. In one implementation, pressing a Page Down or Page Up keyboard key/button allows a user to begin at any starting vertical location within a page, and navigate to that same location on the next or previous page. For example, if a user is viewing a page starting in a viewing area from the middle of that page and ending at the bottom, a Page Down command will cause the next page to be shown in the viewing area starting at the middle of the next page and ending at the bottom of the next page. Similar behavior occurs when there is more than one column of pages being displayed in a row.

Sheer insanity.