Guest Writer I Coronavirus: is a patent war holding back screening?
As a patent war looms in China between the Chinese government and the company Gilead (manufacturer of «Remdesivir»), another frightening story has recently been reported by some American media outlets. A company has allegedly filed a patent infringement lawsuit that could jeopardise the upcoming marketing of diagnostic tests by BioFire and bioMérieux.
Labrador Diagnostics LLC, labelled a «patent troll» (an entity that acquires patents to assert them against potential infringers for profit), holds two US patents, which were assigned to it by Theranos Inc.
In 2018, Theranos had assigned its patents to Fortress Investment Group, a gigantic patent troll funded by SoftBank. In essence, SoftBank finances Fortress, which bought Theranos's patents, before creating a shell company, Labrador, which allegedly decided, in the middle of the Covid-19 pandemic, that it would sue companies wishing to manufacture a Covid-19 diagnostic test – BioFire Diagnostics, LLC and bioMerieux SA – claiming that the said test would infringe these Theranos patents, and asking the court to provisionally ban their manufacture on American soil.
Mark Lemley, a distinguished professor across the Atlantic and director of the Stanford Law School's programme, concluded in a tweet on 16 March that « This could be the most staggering piece of intellectual property in history« .
Another version
Unfortunately for patent detractors, and fortunately for the fight against Covid-19, the story reported is inaccurate, if not erroneous, to say the least. The true story began in 2018 when Fortress acquired the patents from Theranos. On March 9, 2020, Labrador sued BioFire and bioMerieux for patent infringement, alleging they were infringing on the US patents acquired by Fortress from Theranos. This patent infringement action does not concern the Covid-19 test, but focuses on the defendants' activities over the past six years, which have no connection to Covid-19 testing.
Two days after being sued for patent infringement, on March 11, 2020, bioMérieux announced the upcoming launch of three different tests « to combat the Covid-19 epidemic and to meet the various needs of doctors and health authorities in the fight against this emerging infectious disease« .
> Read also:Coronavirus: diagnostic tests explained in five questions
Once bioMerieux made this announcement on 11 March, Fortress and Labrador have become virtual punchbags on the internet for daring to sue companies working to commercialise a test for SARS-CoV-2. They were thus immediately branded as wicked «patent trolls» profiting from a serious health crisis for financial gain.
More seriously: how was Labrador supposed to know that BioFire and bioMérieux would announce two days after being sued that they were working on marketing a test to combat The Covid-19 pandemic And what difference does it make that they are pursuing steps for the commercialisation of a SARS-CoV-2 diagnostic test if they are being prosecuted for other unrelated activities that could infringe the patents in question?
Free licences...
In principle, patent trolls give no gifts and therefore are not in the habit of offering free licences, giving free access to patented technologies, quite the opposite.
Yet, despite this genuine-fake scandal, as soon as Labrador learned that BioFire and bioMérieux were working on commercialising a test for SARS-CoV-2, the company offered the defendants a royalty-free licence for the tests protected by the invoked patents. But Labrador didn't stop there. On March 17, the company also announced that it would offer such free licences to any third party for the use of its patented diagnostic technique for Covid-19-related tests.
The offer of a free licence to any third party working on diagnostic tests to detect Covid-19 is a generous and supportive response not only for BioFire and bioMérieux, not only to all biopharmaceutical companies working on Covid-19, but ultimately for the entire world.
« Labrador fully supports efforts to evaluate and end this pandemic and hopes for further tests to be created, disseminated and used to swiftly and effectively protect our communities through its offer of a royalty-free licence during the current crisis.«, explains the press release published on 17 March.
Labrador a «patent troll»? Perhaps. In the meantime, this supposed villain of patent law has set an example in this war against the pandemic, an example that might perhaps inspire other patent holders, so that patents are no longer systematically scapegoated and are seen for what they really are: incentives for innovation.
This opinion piece was published in Les Échos.