Trials & Litigation

Patent theft suit blames former McDermott partner; defense sees 'smoke and mirrors'

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A former partner at McDermott Will & Emery is being accused of helping two of his family members steal a patent in a civil case that bases the allegations on circumstantial evidence.

Representing the plaintiff medical-testing company, Theranos, is David Boies, who said in opening arguments this week that the former McDermott partner, John Fuisz, had tried to intimidate the company’s CEO in videotaped testimony, the Recorder (sub. req.) reports. According to Boies, John Fuisz said he would “file patents and f— with her till she dies.”

The defendants in the San Jose, Calif., federal suit are John Fuisz’s father, Richard, and brother, Joseph, along with Richard and Joseph’s company, Fuisz Pharma. All have denied wrongdoing. Richard and Joseph Fuisz, who are representing themselves in the case, said in opening statements that they are long-time inventors who developed the patent on their own, the story says. Joseph Fuisz is a former corporate lawyer who practiced at Sullivan & Cromwell and Richard Fuisz is a former physician.

Theranos claims Richard and Joseph Fuisz stole technology that can run dozens of tests with a single drop of blood. Boies told jurors that John Fuisz had access to McDermott’s file room, and the most logical explanation for Richard and Joseph’s patent is that John Fuisz obtained details from law firm files, according to the Recorder report on the arguments.

Theranos was a McDermott client, though John Fuisz was not a lawyer for the company, the story says. He left McDermott in 2009 and formed the Fuisz-Kundu Group. “Elizabeth falsely accused me of theft and has irreparably harmed my career and my ability to take care of my family,” he told the Recorder. “I had clients leave, and the accusations have been brought up in every case I have.”

Theranos had filed malpractice claims against John Fuisz and McDermott, but the case was dismissed. The BLT: The Blog of Legal Times covered the dismissal last August.

The family of Theranos CEO Elizabeth Holmes had been longtime friends with the Fuiszes, and Richard Fuisz had previously offered to help Holmes with her invention, but the offer was declined, Boies said. He alleged that the Fuiszes thought they could take advantage of Holmes because she was young and female, the story says.

Florida solo Rhonda Anderson represents Fuisz Pharma in the litigation. “You’re not going to see any evidence that John Fuisz went into the file room,” she told jurors. “You’re going to see smoke and mirrors.”

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