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BioMérieux's BioFire Diagnostics Sued; Coronavirus Tests Accused of Infringing Theranos Patents

NEW YORK – A company associated with an investment fund that acquired patents initially awarded to disgraced testing firm Theranos is suing BioMérieux subsidiary BioFire Diagnostics, alleging its coronavirus tests infringe the patents.

In a complaint filed March 9 in the US District Court for the District of Delaware, Labrador Diagnostics said BioFire's FilmArray products infringe US Patent numbers 8,238,155 and 10,533,994, which cover fluidic systems used in diagnostics.

Both patents were assigned to Theranos and its founder Elizabeth Holmes as an inventor.

Labrador is owned by investment funds managed by Fortress Investment Group, part of Japan's Softbank conglomerate. As Theranos dissolved in 2018, following revelations that its diagnostic testing technology did not work as advertised, Fortress Investment — which had loaned Theranos $65 million in 2017 — acquired Theranos' patent portfolio, which included dozens of US patents and more in other geographies.

Labrador, meanwhile, was incorporated as a limited liability company in Delaware on March 6, just three days before it filed its lawsuit against BioMérieux.

A spokesperson for BioFire said Labrador's "sole" apparent purpose was to assert the Theranos patents. "BioFire and BioMérieux believe the asserted patents are invalid and not infringed, and will rigorously oppose Labrador's lawsuit and any efforts to restrict the ability of BioFire and BioMérieux to properly respond to the public health emergency facing the US and other countries around the world," they said.

France's BioMérieux acquired BioFire in a $486 million deal finalized in 2014. It offers several technologies for multiplex PCR testing, including the FilmArray platform.

On March 11, BioFire announced plans to launch three different tests to diagnose SARS-CoV-2, the virus that causes COVID-19, two of which will run on the FilmArray platform.

Since the lawsuit was filed, Labrador and Fortress have been criticized for its actions in the face of the SARS-CoV-2 pandemic that has infected more than 207,000 people around the globe, and killed almost 8,300 people. Mark Lemley, a patent law expert at Stanford University, told ArsTechnica, "this could be the most tone-deaf IP suit in history."

Fortress Investment did not immediately respond to request for comments.

In a statement issued March 17, Fortress Investment said it would offer "royalty-free licenses to third parties to use its patented diagnostics technology for use in tests directed to COVID-19." The firm did not respond to questions about whether anyone had inquired about obtaining such a license.

Labrador is represented by the law firm Farnan, which has also represented Guardant Health and Pacific Biosciences, among other genomics companies, as plaintiffs in patent infringement cases. The firm did not immediately respond to request for comment.