Elizabeth Holmes (Photo by Kimberly White/Getty Images)
Having watched the Theranos saga unfold ever since I read about Elizabeth Holmes and her supernova startup in Forbes back in 2014, I was looking forward to seeing the HBO documentary called “The Inventor” — especially since the IP angle around the Theranos story is a strong one, as I recently discussed in a column a few weeks ago. Now that I have seen “The Inventor,” I think there are some lessons that we as IP lawyers can take from the Theranos story it presented. The lessons below are on top of what I have addressed before, namely, the need for real due diligence, with IP counsel involved as necessary, whenever investors look to put money into a company touting a breakthrough technology.
First, “The Inventor” confirms that the “myth of the genius inventor” is still a potent one. We all seem to want to believe in the romance of the genius who sees the world for what it could be, rather than what it is — and who also has the gumption to ignore the naysayers and push forward with their dreams. In fact, the documentary rightly suggests that the bolder the inventor’s vision, the more taken people can become in rooting for that vision to succeed. Part of it is admiration for the inventor’s courage, and part seems connected to our human desire to contribute in our own way to something world-changing, even if our contribution is as small as becoming a fan of the genius inventor.
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While regular people’s tendency to mythologize inventors presents IP lawyers representing patentees great opportunities at trial, it also suggests that investors and the public are prone to being deceived when confronted with a slickly packaged inventorship tale. IP lawyers, therefore, should be careful about turning off their natural skepticism when counseling clients dealing with inventors, especially where the inventor makes grandiose claims — as Holmes did about the power of her technology — that are not backed up by hard evidence. Evidence, not emotion, should be the basis of all our dealings with inventors, especially when there’s even the smallest risk that the inventor is self-deluding themselves and others about the value of their contributions to the world.
Second, one of the most moving parts of the documentary is the tragic retelling of the fate of Ian Gibbons, a respected British biochemist who took his life during Theranos’s heated patent dispute with Fuisz Pharma. As reported in this Ars Technica piece, Gibbons “faced either admitting that the technology didn’t work or perjury” during his scheduled testimony, and feared for his job if he told the truth about Theranos’s failures in developing workable technology. Hearing about this for the first time while watching the documentary, I was immediately reminded of how frightening giving testimony can be for witnesses, even in a run-of-the-mill commercial dispute of the type we handle all the time. We should be mindful of that fear and unease when we prepare our witnesses for deposition or trial, and talk with our witnesses about any concerns they have around giving testimony.
I understand that Gibbons’s personal circumstances were much more involved than what a regular witness has to deal with, but I also think it is fitting to use his unfortunate example as a reminder to maintain our respect for the humanity of witnesses in our cases. We may not always appreciate that our witness may have concerns around giving truthful testimony, but encouraging them to do so while allaying their unease with unfamiliar litigation processes can only help the truth to come out. Considering the level of emotion that is often present in IP disputes in particular, anything we can do to reassure our witnesses that they will be protected to the best of our ability (as long as they tell the truth) is worth our consideration.
Finally, it is hard to watch the documentary without developing a new respect for the human capacity for rationalization. Watching as a litigator, there are a number of times where the documentary tried to paint Holmes as lying, for example, where what she was actually doing was spinning the truth to maintain the illusion that her company was making a positive social contribution. As litigators, we are trained to recognize carefully chosen wording that may be technically true but used in furtherance of a deception. Put another way, we can smoke out — unlike other audiences — artful rationalizations being expressed to persuade the listener that the speaker is both truthful and committed to the cause. We know that the more careful the speaker is about being precisely truthful, the more likely it is that they are trying to rationalize away the false impression they know their words will create. But regular people are often less well-equipped to deal with true-believing deceivers of this type.
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There are several examples of this phenomenon in the documentary, and one is left with a grim respect for Holmes’s powers of rationalization. In her mind, she had the solution to a pressing health problem, and it was just a matter of time until that solution actually worked. Buying that time — and the money to see her vision through — by spinning the truth was in her view the absolutely correct, nay necessary, thing to do. Unfortunately, many people were hurt in the process, and we as lawyers must always remind ourselves of how important our natural skepticism can be in helping us identify and deal with impostors who would harm society.
Ultimately, the Theranos documentary is a worthy watch for IP lawyers. It reminds of the dangers of hype around an inventor’s alleged contributions, the importance of reassuring witnesses before they testify, and our need to respect the capacity of others to rationalize even the worst of behaviors. At bottom, one can’t help but think that much of the harm caused by Theranos could have been avoided if investors or regulators would have focused less on the company’s lofty goals than on its actual progress towards those goals. Or how much trouble could have been saved if Holmes was treated like “an” inventor, rather than “the” inventor.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.