How the patent office's lax standards gave Elizabeth Holmes the BS patents she needed to defraud investors and patients

The only BS here is the misplaced idea that the patent office is a substitute for due diligence. If you are an investor who puts weight on patents, then do your own due diligence. Patents are public documents, and investors are free to read them. If it reads like BS, then don’t invest. If you don’t understand it, then disregard the patent when you go through your decision process.

The claim that receipt of a patent ought to imply the thing it describes works … that is often an impossible standard, because patents seldom describe a “thing” per se. The patent is obligated to describe enablements, and there are often an infinite number of ways to put something together from those enablements. Furthermore, a good patent will generally have claims that the assignee never intends to use … they are there for the sake of discouraging competitors from pursuing other paths to a similar end, or they are there because the inventor conceived related, possibly licensable claims. And you often need patents so that you can do horse-trading with others that hold patents that you need to do business. That may seem awful and vaguely corrupt, but it’s how business is done.

So, someone files patents, uses them as part of a scam, and some overzealous investors buy. That is not, in itself a reason to blame a “broken patent system”, any more than the PowerPoint decks that were part of that scam are an indictment of Microsoft, or the fact that checks were issued, cashed etc. is part an indictment of the banking system.

As far as whether this poisons the well for other patent applications, I doubt it. If it does, that’s a shame, but it it’s just the flip side of the flawed “patents are magical” idea. The patent office doesn’t owe an inventor anything besides a patent, and that only if it meets the standards of patentability. Patents are not suddenly worthless,
post-Theranos, any more than they were inherently magical pre-Theranos. There are a lot of worthless patents out there, and there are some (e.g. PageRank) that were borderline magical. I am a named inventor on several patents, and have yet to see a penny of direct income from any of them. That doesn’t dissuade me from filing (I expect to file several this year).

I’m not saying the US patent system is perfect. Far from it. And there may be modern, free market tech licensing techniques that will ultimately replace patents, or alter the nature of their role. I’m just saying that Theranos, their patents, and the patent process are rather separate things, and saying, in effect, “Patent system broken, because Theranos”, is unforgivably sloppy thinking … especially when proclaimed in a column that seems to fancy itself as a source thought leadership.


I ended up with two shortcomings about BoingBoing that i never had before:

  1. Is there an archival Search feature? Search on BoingBoing is only like, a week or something, right?

(I wanted to look up to see if there was ever anything on BoingBoing about Theranos back in the day, like 2012)

  1. How do you reply to a reply? I’ve never needed that before either.

(I wanted to note that, besides not having an archival Search that I could find, I – Richard Katz – don’t have any other patents besides 8,063,026 which is a cure for bladder infections = A Palliative for Infections of hte Lower Urinary Tract to Richard Katz alone. I think it was AndreStMaur who said I had other patents; I should look that up; but there are plenty of Richard Katzes out there.)

While I’m here though I’d like to put in that I’m pretty sure that it’s always been the case that every single utility patent from the USPTO has been granted with the understanding that it can definitely be reduced to practice. They mention “constructively” when they’re talking about how it COULD be reduced to practice; but no, “reduced to practice” means … hmmmm, means that it works. Does it mean that? yeah, sure; it works. What lets the USPTO off the hook for Theranos is that when all was said and done – and it’s not completely over yet – Theranos was/is a fraud. You can’t like, blame anybody, when there’s a fraud; not really; sure, the cops were supposed to nab’em; but you know what? Some criminals are really slick. Elizabeth and Sonny took the USPTO for a ride, they sure did; but you know what? Their real skill was in playing the Press like a piccolo. They got ALL of the journalists, like ALL of the Media, to stand up and clap as loud as they could for their magical machinery, their brilliant techno invention. For years, not one reporter asked “Does it work?” Not one. Yeah, I know, they had a Patent. So what? The reporter is supposed to say “Does it work?” and then say “So show me. Let me see it work.” Elizabeth and Sonny were absolutely no different from the Wizard of Oz, and not one reporter did the Toto thing with the curtain. Not ONE. This article and some of these comments want to put part of the blame on the Patent Office. Well good luck with that. The Commenters are of all stripes, me included. But the Article? Speaking for BoingBoing and synecdochically for The Press? No. You screwed up. Strew at least SOME of the blame on yerse’f, bubber.

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The linked paper tracks the statistics from 1996 to 2012. Since that’s the year that the America Invents Act took effect, it’s likely something changed after that year. I’m not going to make an assertion of exactly what, although with the expansion of the definition of prior art and the introduction of post-grant review, I doubt that it increased the rate of grants. However, any study that doesn’t take into account the effect of the most significant change to the Patent system since at least when software patents became possible can’t really be used to make definitive conclusions about the Patent system as it exists today.

The functionality of an apparatus is derived from its structure and makeup. That’s why functional language doesn’t generally get patentable weight.

Take a look at the original Theranos patent, specifically at the claims. Is there anything there that looks like it couldn’t be built? No. It’s entirely within the capabilities of manufacturing. The problem is that once built, it doesn’t do what they intend it to do. Sensors aren’t capable of accurately distinguishing the amount of analytes in the volume of blood they’re using, or any number of other practical problems.

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the article has a hell of a closer

It seems fitting that Theranos’ patents would end up this way. Accused of having lied to investors and endangered patients, the company leaves us with a parting gift: a portfolio of landmines for any company that actually solves the problems Theranos failed to solve.

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When I tried it I got results back to 2016 - which granted doesn’t quite take us far enough…

I see you worked it out :slight_smile:

There is a tutorial if you want to try it. I think if you PM @discobot with ‘start new user’ or ‘start advanced user’, that should start it.

Ah, I confused you with Richard A. Katz who appears to have loads of patents.

It doesn’t help that searching for patents tends (for me at least) to have Google Patents as the first result. They correctly found your patent but provide what they presumably thought would be handy feature by letting users click on your name to show other patents in their database by %Richard %Katz with no differentiation as to whether they are by the same Richard Katz or by Richard A Katz, etc.

Justia Patents also comes up a lot and they flat out assert that Richard A Katz is the holder of your patent - presumably because they too just scrape the bare minimum details from the USPTO database.

Lesson forgotten and once again learned the hard way - always go to the primary source…

I’m inclined to agree although if you’re going to argue that the USPTO couldn’t have known because they were taken in by the fraud, the same applies to journalists.

I’m surprised by the investors. The initial investors I can sort of understand - at that stage everyone knows you’re piling money into a hole in the ground hoping that a money tree will miraculously grow and knowing that it almost certainly won’t. There probably isn’t a product to demonstrate because making one is what your funding is supposedly for.

And in the beginning they seem to at least have tried to make something approximating the claims. Of course, they couldn’t actually do it.

By the time people like Rupert Murdoch came on board, there should have been something to show and there wasn’t but people still chucked money in.

Is that because there are people around who are rich enough that the sort of money they personally are investing is so small to them that they don’t feel the need to do due diligence? Is it because they are so convinced of their business acumen and ‘gut’ that they don’t need no fancy experts to evaluate the claims? Is it because they were mostly old men who fell for Holmes’s freaky non-blinking eyes?

Or all of the above?

Either way it’s a fairly clear indictment of the myth that these people are rich because they are clever and diligent.


I just noticed the TITLE of the article, how it castigates the Patent Office "s “lax standards”.
That’s what I meant to say: I want to castigate the Press’s lax standards.

Dumb as a post.


There’s certainly enough scope to castigate everyone, press included.

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