Patent Trolling Could Hold The Coronavirus Response To Ransom

3D printing company Isinnova won the world's heart by rushing respirator valves to an Italian hospital at the center of the coronavirus pandemic, but legal threats are limiting their capacity to distribute them more widely. Cristian Fracassi/Facebook

You wouldn’t think that the middle of a global pandemic was a great time to be fighting about intellectual property, particularly if such battles got in the way of providing vitally needed tests, medications or instruments, but some people disagree.

A previously obscure company called Labrador Diagnostics (which lacks a website and shouldn’t be confused with the similarly named test lab) attempted to halt the production of COVID-19 test kits due to "patent infringement". Faced with a barrage of outrage they’ve now retreated, but their actions reveal the way the law can hinder swift responses to a crisis.

The story begins with Theranos, the company that conned a lot of rich people into investing millions into radical new blood testing platforms that turned out not to work. Upon its collapse, whatever assets possible were sold off including two patents for virus testing, which were bought by Labrador. Given that Theranos’ tests were mostly useless, it’s questionable if these designs would even work, particularly for COVID-19, discovered four years after the patents were lodged.

The patents were drawn so broadly however, that Labrador is suing French company BioMérieux, which is rolling out tests for COVID-19 and 21 other viruses and bacteria that infect the respiratory system. Labrador claims these tests violate the ex-Theranos patents. Techdirt reports that Labrador demanded BioMérieux cease manufacturing any tests, and no one uses any tests they do make, until the court case has been heard, something likely to take even longer than the search for a vaccine.

Labrador isn't offering to supply the desperately needed test kits themselves. They have no production facilities, raising the suspicion they are patent trolls: companies or individuals who register or buy a patent before threatening to sue those making something loosely related. Such suits almost never succeed in court, but victims sometimes pay trolls to avoid the battle.

BioMérieux had the unenviable choice of either paying Labrador off – making future suits like this a certainty – or be distracted from their role as a leading test producer, putting everyone’s lives at greater risk.

After the Techdirt article was published on Monday, and apparently realizing the likely response, Labrador announced it was unaware BioMérieux was making COVID-19 test kits and the suit’s timing was coincidental. They’ve offered to grant a royalty-free COVID-19 license, allowing them to launch a suit against other aspects of BioMérieux’s products later on. 

Labrador Diagnostics are not the only ones whose patents could interfere with disease-fighting efforts.

Faced with a shortage of parts to operate respirators in northern Italy, 3D printing pioneer Christian Fracassi rushed a printer to Brescia hospital, and dashed off 100 precious valves.

While Fracassi moves onto printing masks, others are attempting to build open-source ventilators that anyone with a 3D printer could produce. 

Nevertheless, Fracassi is not making the design available online, apparently in the face of threats from the ventiliator's unnamed manufacturer. Instead, the designs will only be available when the makers can’t provide their parts fast enough – a fair system in theory, but one that could add extra delays as hospitals' needs gets vetted.

Besides the legal issues, projects like this raise concerns if enthusiastic people 3D print parts out of non-medical grade plastic.

Then there was the reported attempt by the Trump Administration to lock in exclusive rights to a COVID-19 vaccine being developed by CureVac. It's unclear if the Trump Administration was looking for exclusive US use or for the research and production to be on US soil as the story is disputed, but if true, success would have meant a product developed in Germany with German government support would not be available to Germans without US approval.

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