“Is Unified a war profiteer? Of course, they are. But they are only one cog in the larger worldwide scheme of the most powerful multinational corporations whose goal is to monopolize technologies by destroying patents and innovation.”

On March 18, President Trump declared war and then declared himself a war-time president. The enemy is the COVID-19 pandemic. It is during times like these we see the best, as well as the worst in people. I know of what I speak having lived through Hurricane Katrina in New Orleans, witnessing some who quadrupled their fees to take advantage of citizens during the disaster. With the pandemic and many people either frightened or in worse cases ill, who would stoop so low as to capitalize on this tragedy?

In any war, there needs to be absolute good, diabolical evil and innocent victims. Some companies form these characters through press releases, articles and proxies to influence the public conversation and line their own pockets. Those companies are war profiteers.

In a press release dated March 20, 2020, Unified Patents announced that “Fortress recently acquired the Theranos patents (listing Elizabeth Holmes as the lead inventor) and has asserted them against U.S. diagnostics companies through a newly formed NPE called Labrador Diagnostics LLC. “

In the same press release, Unified attempts to illuminate the public on the absolute good character of the company, fighting for the greater good of the world in the war against COVID-19. On this point, the press release announced that Unified Patents had launched a crowdsourcing effort to identify invalidating prior art against the Labrador Diagnostics’ patents (who Unified continually refers to as Fortress in an apparent effort to smear Fortress despite the fact that Fortress does not own the patents and is not engaging in any enforcement activities) stating: “Rather than offer a reward, we believe it is in the best interest of the community (and the world) to widely, freely, and quickly publish the results to help eliminate invalid patents that could hinder COVID-19 diagnostics tests in these trying times.”

In the same press release, Unified tells us who the innocent victim is by stating that the company sued for patent infringement by Labrador Diagnostics “was making COVID-19 diagnostics tests for the government based on the technology at issue.”

This makes for a great story that tugs at the heartstrings. If only this were true.

On March 17, three days before Unified Patent’s release, Labrador Diagnostics announced that it would “offer to grant royalty-free licenses to third parties to use its patented diagnostics technology for use in tests directed to COVID-19.” In full knowledge of this and despite it, Unified says in the press release that Labrador Diagnostics is “seeking to enjoin the company from making, using, or selling a wide array of diagnostics”. While the lawsuit filed seeks payment for ongoing infringement, it does not seek to enjoin any COVID-19 activities given that Labrador offered a royalty free license to anyone engaging in the development COVID-19 diagnostics.

Not yet satisfied in casting Fortress as diabolically evil, Unified went further: “We believe everyone should chip in to deter such bad behavior, especially from entities like Fortress that have a long history of asserting patents often found invalid when challenged.” Unified makes no effort at identifying examples of this and how protecting patent rights is somehow “bad behavior”, but goes on to say we should “help rid the world of them, in the process improving the world’s chances of testing for and containing COVID-19 and other dangerous public health concerns.”

Jonathan Stroud, Chief IP Counsel at Unified Patents took a slightly different tack to the same end. In a post on LinkedIn, Stroud presented a question. Hanging in the question is the baseless and senseless accusation that since Theranos executives were fraudulent, so must be the patents. “It will be interesting if Theranos, a company whose products never worked and who didn’t do what they promised, and who falsified data and testing on a scale not seen in recent memory, could also at the same time secure almost a thousand patent assets that, under our existing standards, are “strong patents.”

But Stroud uses his attack to expand the concept implying the entire patent system is broken with Theranos as proof. “If these patents stand up and we’ve granted this company hundreds of patent rights to exclude practicing companies from making, using, and selling actual diagnostics, what does that say about our examination and enablement requirements? And if they don’t (stand up), what does that say about examination?”

Both imply that the patents will be used to “enjoin” or “exclude” companies from products built on the patents. Of course, everyone in the intellectual property field know that few courts will grant an injunction given the Supreme Court’s decision eBay v. Mercexchange. In fact, today the only way a patent owner can realistically have any expectation of an injunction is if they are in the selling in the marketplace and are suing a competitor. This is primarily because eBay requires a public interest test and views damages as adequate to compensate a patent owner for infringement. Since Labrador Diagnostics does not have a product on the market, it will be impossible to pass the eBaytest. Everyone at Unified knows this. It is not a question of exclusion. It is a question of returning investment made in developing the technology to the investors bilked by Theranos misconduct.

Is Unified a war profiteer? Of course, they are. But they are only one cog in the larger worldwide scheme of the most powerful multinational corporations whose goal is to monopolize technologies by destroying patents and innovation. This recklessness to preserve their monopolies has brought utter destruction to our nation’s innovation engine – startups.

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