Posts Tagged: "COVID-19"

“The world is unaware of the cannibalistic nature of the current IP system and what it means for innovation and jobs,” Dan Brown, an award-winning inventor (40+ patents) and Professor of Design at Northwestern University, told a livestream presentation last week, titled ‘Living with the Impact of Covid-19.’ He added: “We have failed to support the rights of the inventor. Providers of look-alike products, both domestic and foreign, are engaged in theft but not held accountable. It is more efficient to infringe or steal someone’s work than to spend the time and money to develop it yourself. The chances of being caught and punished are much more unlikely today than a decade ago.”

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.

In his address to the Intellectual Property Owners Virtual Annual Meeting yesterday, USPTO Director Andrei Iancu said that, despite sharp declines in filings and renewals, COVID-19 seems to have spurred innovation in some areas. “Small and micro entity patent filings are at a historic high, with more than 112,000 filed during the first 11 months of fiscal year 2020,” Iancu said. In an August interview with IPWatchdog Founder and CEO Gene Quinn, Iancu discussed one of the COVID-19 relief programs the Office has instituted to support small inventors during the pandemic. A pilot that offers free prioritization of COVID-19 related patent applications has been working well, Iancu told Quinn, and is expressly geared to assisting smaller entities.

Last week, the World Intellectual Property Organization (WIPO) issued the Global Innovation Index (GII) 2020 report jointly with Cornell University, INSEAD and the 2020 GII Knowledge Partners, which included The Confederation of Indian Industry, Dassault Systèmes – the 3DEXPERIENCE Company, and The National Confederation of Industry (CNI) – Brazil. The report showed that the United States remains in third place behind Switzerland and Sweden in WIPO’s ranking of global economies in terms of innovation capacity and output.

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.

The United States Patent and Trademark Office (USPTO) recently announced the COVID-19 Prioritized Examination Pilot Program, under which the USPTO will advance certain patent applications related to COVID-19 “out of turn,” resulting in prioritized examination for qualifying applications. Under this program, the USPTO reportedly aims to provide final disposition of qualifying applications within one year of the filing date, meaning that a final office action or notice of allowance will be mailed (or a notice of appeal will be filed) during this shortened one year timeframe. For comparison, it typically takes the USPTO roughly 16 months from the filing of an application to mail a first office action.

I recently had the opportunity to conduct an interview with Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, via WebEx. The focus of our conversation was the COVID-19 pandemic: USPTO efforts to work with stakeholders, the role of intellectual property in finding cures and treatments, and general thoughts relating to what the Office is observing. Our conversation also veered into Bayh-Dole and the the letter just sent by three-dozen state Attorneys General asking the federal government to use march-in rights against Remdesivir.

One thing you should never say in 2020 is: “Well, at least things can’t get any worse.” They can and often do. The latest exhibit—in the intellectual property space at least—is a letter to Health and Human Services (HHS) Secretary Azar, National Institutes of Health (NIH) Director Collins and Food and Drug Administration (FDA) Commissioner Hahn authored by California Attorney General Xavier Becerra and Louisiana Attorney General Jeff Landry. It’s also signed by 32 other state attorneys general, along with those representing the District of Columbia, Guam and American Samoa. They are demanding that the government use its authorities under the Bayh-Dole Act to march in against Gilead Sciences, the maker of the COVID-19-fighting drug remdesivir, so that it can be made more widely available at a lower cost.

Senators Thom Tillis (R-NC), Ted Cruz (R-TX), Kelly Loeffler (R-GA), and Marco Rubio (R-FL) have introduced a bill titled the Protecting America from Spies Act, which targets individuals who have committed or may in the future commit U.S. intellectual property theft. The legislation comes soon after reports of Chinese and Russian attempts to steal COVID-19 related IP and research in the race to a vaccine to end the pandemic. On July 22, the Department of State ordered the Chinese Consulate in Houston to close, citing evidence of “espionage and intellectual property theft.”

Former Senator Robert Dole turned 97 last week, but he’s still very much engaged in what’s going on right now. He just wrote a powerful op-ed, Innovation is key to defeating COVID-19. Subtitled “Enacted 40 years ago, the Bayh-Dole Act is helping facilitate the development of coronavirus therapies today,” Senator Dole reviews how the law he crafted with former Senator Birch Bayh revolutionized the commercialization of federally-funded inventions. Bayh-Dole paved the way for companies like Moderna to create critically needed therapies to combat our raging pandemic. But there’s another message Senator Dole delivered that’s just as topical.

On July 16, 2020, the U.S. Chamber of Commerce and national business associations of the UK, France, Germany, Korea, and Canada, published an Open Letter to Heads of States and Government leaders titled “Working Together to Discover and Deliver Innovative and Creative Solutions to the Pandemic’s Challenges”.  The letter highlighted the contributions made by businesses in response to COVID-19, noting that businesses have expended a considerable amount of time and resources to “accelerate the research, development and manufacture of protective equipment, advanced diagnostics, disinfection products, medical devices and potential treatments and vaccines.”

Our current experiences with COVID-19 in the United States, together with headlines warning of major efforts by the Chinese and Russian governments to hack corporate, academic and federal laboratories to steal information on pending therapies, underline the importance of maintaining the U.S. lead in the life sciences. It’s not just our health at risk—it’s also our security. We’ve just had a taste of what it’s like depending on China for medicines and protective gear. We also face an internal threat posed by “drug populists” calling for arbitrary government price controls while blaming patents for costs and blocking innovation. Ironically, a perfect example of this school of thought appeared in the  New York Daily News the same day as an important new report issued from the Information Technology & Innovation Foundation (ITIF). Titled “Ensuring U.S. Biomedical Competitiveness”,  the report is a treasure trove of critically needed information.

On July 16, the United Kingdom’s National Cyber Security Centre (NCSC) and Canada’s Communications Security Establishment (CSE), with the United States’ National Security Agency (NSA) in agreement, published a report titled: “Advisory: APT29 targets COVID-19 vaccine development.” The report provided details of Tactics, Techniques and Procedures (TTPs) recently used by a cyber espionage group known as APT29, “the Dukes” or “Cozy Bear”. The United States’ Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (DHS CISA) endorsed the technical detail and mitigation advice provided in the report. According to a press release associated with the report, “NCSC are almost certain (95%+) that APT29 are part of the Russian Intelligence Services” and “NCSC assess it is highly likely (80 – 90%) that [APT29’s] activity was to collect information on COVID-19 vaccine research or research into the COVID-19 virus itself.”

The international economic disruption caused by COVID-19 presents unprecedented challenges. Thriving tech startup companies worth millions in January might find themselves struggling to stay afloat today. This article highlights the value of intellectual property (IP) that companies – particularly small companies without an IP department – can sometimes overlook in times of financial distress. The policy goals behind IP rights are at odds with the goals of bankruptcy law. Bankruptcy laws in the United States are “debtor friendly” and, in their most simplistic form, shield the party from certain debtors while forcing the sale of assets to pay other debts. But court ordered sales tend to undervalue complex property like IP. This is particularly apparent when it comes to patents.