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19 March 2020AmericasEdward Pearcey

Fortress offers licences after COVID-19 testing patent backlash

Labrador Diagnostics, a subsidiary of Fortress Investment Group, has offered royalty-free licences to third parties for its patent-protected diagnostics technology, just days after suing US-based health startup BioFire, which is attempting to develop COVID-19 testing kits.

On Monday, March 9, Fortress filed a suit at the US District Court for the District of Delaware, claiming that BioFire’s FilmArray technology had infringed two of its patents, US numbers 8,283,155 and 10,533,994.

Both patents cover technology involving detecting analytes in bodily fluids, particularly via the use of ‘pouches’ containing samples, which are inserted into a larger diagnostic device. However, there is no mention of COVID-19 in any part of the complaint.

Two days after the suit was filed, the defendants (BioFire Diagnostics and its parent company Biomeriux) issued a press release announcing they were developing tests for COVID-19.

In response to a media backlash, Fortress, which is owned by Japan's SoftBank Group, issued a statement in which it claimed that when its subsidiary filed the lawsuit against BioFire it had no idea BioFire was developing COVID-19 testing kits.

When Labrador learned of BioFire’s announcement, it promptly wrote to the defendants offering to grant them a royalty-free licence for its patented diagnostics technology for use in COVID-19 tests, the statement said.

“Labrador fully supports efforts to assess and ultimately end this pandemic and hopes that more tests will be created, disseminated, and used to quickly and effectively protect our communities through its offer of a royalty-free licence during the current crisis,” said the statement, published on BusinessWire.

It added: “Labrador wants to make clear that the lawsuit was not directed to testing for COVID-19. The lawsuit focuses on activities over the past six years that are not in any way related to COVID-19 testing.”

Fortress bought the patents from now defunct health technology company Theranos in 2018, which ceased operations in early September 2018.

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More on this story

Americas
31 March 2020   Jonathan Tietz, Jason Mock, and Kristel Schorr of Foley & Lardner offer their thoughts on patent procurement and licensing for COVID-19-related technologies.
Americas
26 March 2020   The Costa Rican government has asked the World Health Organization to create a voluntary pool to collect patent rights for technologies that are useful for the detection, prevention, control and treatment of the COVID-19 pandemic.
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