For more on KEI’s work on COVID-19, see keonline.org/coronavirus.
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 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, entitled “Point-of-care fluidic systems and uses thereof” (“the ‘155 patent”) and 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. Theranos assigned these patents to the Fortress Investment Group via a Patent Security Agreement dated December 11, 2017.
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 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.