Richard Fuisz M.D. Notes Legal Precedent In The Federal District Court In Northern California That Threatens Independent Inventors

LOS ANGELES, Sept. 30, 2013 /PRNewswire/ -- The following is a statement from Fuisz. I am 73 years of age and the named inventor of approximately one hundred and ten (110) issued U.S. Patents in diverse fields of invention.  I am deeply troubled by dangerous legal precedent in the Federal District Court in Northern California that poses a substantial risk to independent inventors.

Recently, in Theranos v Fuisz Pharma et al (5:11-cv-05236-PSG), summary judgment was denied for the defendants in a case where plaintiffs Elizabeth Holmes and Theranos allege theft of confidential information, have no factual evidence of theft, and instead rely on expert testimony of a "linguist" and another "expert witness." This expert witness is a former Theranos board member who seems manifestly unqualified to opine on inventorship issues.

In denying summary judgment the Court relies on the "theoretical possibility" of access to plaintiff's confidential files not by the defendant but rather by defendant's son, then a partner at a major law firm prosecuting patents for the plaintiff. The Court refused summary judgment despite the fact that the uncontradicted evidence in the case is that the partner son did no patent prosecution or other work for the plaintiff, had no knowledge plaintiff was a client of the firm and had no financial or other interest in his father's business.

While the facts of this case could be seen as unique, i.e. relating to family relationships only, I see no good reason why this decision should be so limited. If any son – member of the bar notwithstanding – is a potential conduit of information then why not a college fraternity brother, a golf buddy, or a former girlfriend or for that matter even your patent attorney, any one of whom might have "theoretical access" to another company's information. This is a slippery slope indeed!

Once we go to a "'theoretical access' once removed standard," the question is no longer who has once-removed "theoretical access," rather who does not.

If, with nearly one hundred and ten patents myself and eight newly issued United States patents since the institution of this very litigation in October 2011, I can be accused of not having capacity to generate a nine page patent specification, who is immune from accusation and sullying by protected, "information and belief" pleadings? 

Moreover, the application of linguistic analysis to patent art seems facially dubious.

The logical consequence is that any independent inventor can now be accused of misappropriation based on any personal relationship of the defendant-inventor with an attorney or other professional who has 'theoretical access' to confidential information of the plaintiff, plus an expert 'linguist.'   Unless this case is narrowed, good times for linguists ahead, and watch out independent inventors.

"Guilty until proven innocent' is an accurate description when an innocent inventor is charged with receiving stolen information solely on the basis of speculation, innuendo, and questionable expert testimony.

SOURCE Fuisz