Back in 2018, the disgraced biotech company Theranos sold its patent portfolio to Fortress Investment Group, a division of Softbank. Now two of those patents have wound up in the hands of a little-known firm called Labrador Diagnostics—and Labrador is suing a company called BioFire Diagnostics that makes medical testing equipment.And not just any medical testing equipment: BioFire recently announced it had developed three tests for COVID-19 using its hardware—tests that are due out later this month. But Labrador is asking a Delaware federal court to block the company from using its technology—presumably including the new coronavirus tests. As Stanford patent scholar Mark Lemley puts it, “this could be the most tone-deaf IP suit in history.”
Business Insider Italia explains that even though the original manufacturer was unable to supply the part, it refused to share the relevant 3D file with Fracassi to help him print the valve. It even went so far as to threaten him for patent infringement if he tried to do so on his own. Since lives were at stake, he went ahead anyway, creating the 3D file from scratch. According to the Metro article, he produced an initial batch of ten, and then 100 more, all for free. Fracassi admits that his 3D-printed versions might not be very durable or re-usable. But when it’s possible to make replacements so cheaply — each 3D-printed part costs just one euro, or roughly a dollar — that isn’t a problem. At least it wouldn’t be, except for that threat of legal action, which is also why Fracassi doesn’t dare share his 3D file with other hospitals, despite their desperate need for these valves. And if you’re wondering why the original manufacturer would risk what is bound to be awful publicity for its actions, over something that only costs one euro to make, a detail in the Business Insider Italia article provides an explanation: the official list price for a single valve is 10,000 euros — about $11,000.
Have you ever sent a motivational text to a friend? If you have, perhaps you tailored your message to an activity or location by saying “Good luck in the race!” or “Have fun in New York!” Now, imagine doing this automatically with a compuuuter. What a great invention. Actually, no. That’s not a good invention, it’s our latest Stupid Patent of the Month.
This month’s stupid patent, like many stupid patents before it, simply claims the idea of using a computer for basic calculations. U.S. Patent No. 6,817,863 (the ’863 patent) is titled “Computer program, method, and system for monitoring nutrition content of consumables and for facilitating menu planning.” It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer.The ’863 patent is owned by a patent troll called Dynamic Nutrition Information, LLC. Dynamic Nutrition filed a lawsuit this month in the Eastern District of Texas accusing Australian company Fatsecret of infringing the ’863 patent. Dynamic Nutrition had filed four other lawsuits. Consistent with a pattern of nuisance litigation, each of those earlier suits settled very quickly.
This month’s stupid patent, a design patent, shows just how broken the current system of design patents is. Design patents, unlike the utility patents we usually feature, consist only of a single claim followed by pictures. It is generally the pictures that inform the public as to what is claimed. Importantly, in a design patent only the features drawn in solid lines are claimed. Anything in dotted lines is generally not part of the claim.U.S. Patent D767,583, issued on September 27, 2016, is a patent on a design for a “display screen portion with graphical user interface.” Here, the claim is to “the ornamental design for a display screen portion with graphical user interface, as shown and described.” As most design patent owners do, the patent also makes clear that “the broken line showing of the display screen in the figure forms no part of the claimed design.” Below is the sole picture from the patent showing the patented design:
On August 30, 2016, the Patent Office issued U.S. Patent No. 9,430,468, titled; “Online peer review and method.” The owner of this patent is none other than Elsevier, the giant academic publisher. When it first applied for the patent, Elsevier sought very broad claims that could have covered a wide range of online peer review. Fortunately, by the time the patent actually issued, its claims had been narrowed significantly. So, as a practical matter, the patent will be difficult to enforce. But we still think the patent is stupid, invalid, and an indictment of the system.