Posts Tagged: "coronavirus"

Last year brought unprecedented changes as to how the United States Patent and Trademark Office (USPTO) conducts business. Prior to the pandemic, the USPTO was already a trailblazer with employees teleworking. As of 2018, 8,824 patent positions, roughly 94% of the total positions eligible for telework, already worked from home. On March 15, 2020, however, the USPTO closed all of its offices to the public, and subsequently transitioned its entire workforce of roughly 13,000 people (which includes patent examiners, trademark examiners, and other staff), to full telework, practically overnight. Since the majority of these positions were already teleworking, the transition was almost seamless.

Greek philosopher Heraclitus is credited with saying “the only thing that is constant is change.”  In 2020, life for everyone changed, including for those in the intellectual property (IP) sphere. There were changes at the U.S. Patent and Trademark Office (USPTO), in IP litigation, client activities and business development. Looking into the crystal ball, we believe some of those changes are here for good, while others are not.

The Brazilian Patent and Trademark Office (BPTO) presently offers more than 15 programs to speed up examination of patent applications. The prioritization of certain patent applications by means of Patent Prosecution Highway (PPH) programs and other fast-track options has been very effective in reducing pendency. Brazil’s backlog has already been reduced by around 40% and the BPTO estimates an additional 40% reduction by August 2021.

IPWatchdog’s most recent webinar focused on the role of IP in the development of the most promising vaccines to combat COVID-19 and included speakers from the medical community, the U.S. Food and Drug Administration (FDA) and the biopharmaceutical industry. The upshot was: wear masks, get the vaccine when it’s available to you, trust the FDA, and stop targeting IP rights, since there’s no evidence they have hindered the process and, in fact, IP has so far played a crucial role in collaboration efforts.

The current novel coronavirus pandemic and the resulting economic fallout may provide a good opportunity to step back and reevaluate the way companies approach intellectual property. Many are already broadly reorganizing workflows for collaborative development to deal with distanced or remote working. This may provide an opportunity to reassess where IP fits within these workflows and to find opportunities for greater collaboration. The slowed—or, for some, halted—economy has also lengthened or delayed development cycles, which may give the time needed to discover new ways of strategically managing patent filings. Even those companies seeing less drastic economic effects may observe market trends toward new products or even new categories that fall outside of previous forecasting and planning, inviting more focus and less-compressed schedules.

Like most countries, Brazil has been facing severe restrictions in an attempt to slow down the spread of COVID-19.  Non-essential services are currently closed in almost all metropolitan areas and authorities are discussing plans to resume activities while the number of fatalities reaches its peak. In Brazil, the courts have approximately 450,000 employees, including more than 18,000 judges. If we also consider 1.2 million attorneys, it is reasonable to say that the justice system in Brazil involves at least 1.65 million people. The Brazilian Patent and Trademark Office (BPTO) operates on a smaller scale, with no more than 1,000 public officials on duty. The IP community is on average quite smaller in comparison to other areas, such as banking and M&A, but still extremely active. The BPTO hears over 250,000 proceedings per year, including patent, trademark, design applications and contracts.

In the wake of COVID-19, government officials around the world face unprecedented decisions about when and to what extent they should reopen their respective societies before effective anti-viral medications or vaccines have been developed, necessary regulatory approvals obtained, and those solutions are manufactured for public use. Fundamentally, such decisions will require a delicate balance between protecting public health and facilitating economic growth, which, as we have all been reminded this year, are deeply intertwined.

The business of the Patent Trial and Appeal Board (PTAB) continues on as most practitioners transition into another month of working from home. Like many courts, the PTAB has adapted its standard practices. For example, the PTAB has transitioned to remote hearings and encouraged remote depositions, but has otherwise continued to advocate for business as usual. The PTAB also appears to be accommodating requested scheduling changes. This article addresses the main highlights from recent PTAB actions to provide practitioners with additional resources as they navigate PTAB practice over the next weeks and/or months.

More than 30 leading conservative and libertarian organizations have joined on a letter to Congress, voicing “strong opposition” to principles, recently unveiled by four senior lawmakers, that would deny exclusivity to inventors of COVID-19 medicines. The legislators, U.S. Reps. Jan Schakowsky (D-Ill.), Peter DeFazio (D-Ore.), Rosa DeLauro (D-Conn.) and Lloyd Doggett (D-Tex.), say they aim “to ensure any COVID-19 drug will be accessible and affordable for all people.” The proposed items are expected to show up in a contemplated coronavirus economic recovery package, the fourth in three months.

It may seem odd, as unprecedented public/private sector R&D alliances work to discover and develop therapies to counter COVID-19, that some are trying to punish the companies trying to get us out of this mess. For example, House “Progressive” leaders unveiled the  “three protections”  they will try to insert in the next Congressional aid package, beginning with this: “NO EXCLUSIVITY: Pharmaceutical manufacturers should not be granted exclusivity for any COVID-19 vaccine, drug, or other therapeutic-whether it has been developed with U.S. taxpayer dollars and publicly funded, or not.” Consider the last phrase. They would take away rights to technologies developed entirely with private funding without evidence of any public need for doing so.

The novel coronavirus pandemic has upended our lives, creating a far-from-normal “new normal.” And it has also given rise to countless collaborations between and among universities, hospitals, medical centers, pharma companies and others to pool their talent and resources to discover, test, manufacture and distribute diagnostics, treatments, vaccines, personal protective equipment and other resources needed to fight the pandemic. Antitrust law poses no risk to these collaborations, so long as they remain focused on their core missions. But at the same time, antitrust law recognizes that in cooperating and exchanging information and insights for those missions there is the potential for “spill-over effects” that can create antitrust risk. The trick is to know where that dividing line is and to avoid crossing over it.

With two-thirds of the world in lockdown and no clear way out of the novel coronavirus crisis, it’s increasingly obvious that biopharmaceutical innovation will play a pivotal role. A new treatment that can mitigate the worst effects of COVID-19, and ultimately a preventative vaccine, could, literally, save the world. Such life-saving technology is less likely to be forthcoming if, in their panic, governments sacrifice intellectual property (IP) rights for new COVID-19 therapeutics and vaccines. The signs are not promising. IP-skeptic governments in Chile and Ecuador have taken preemptive measures by permitting compulsory licensing of any new COVID-19-related technology. Otherwise innovation-friendly Canada and Germany have passed legislation to issue compulsory licenses more easily. Even in the United States—the center of modern biopharmaceutical innovation and a major player in ongoing COVID-19 research and development (R&D) efforts—there is pressure to break patents.

On April 10, multinational corporation 3M filed a lawsuit alleging trademark infringement claims  against N95 respirator distributor Performance Supply, LLC, in the Southern District of New York. Central to 3M’s suit is the company’s desire to eliminate what it calls a false and deceptive price-gouging scheme being perpetrated by entities operating outside of 3M’s authorized supply chain and taking advantage of increased respirator demand caused by the COVID-19 crisis.