By Dani Kass

Law360 (May 15, 2020, 2:12 PM EDT ) The Federal Circuit will continue to hold remote oral arguments into the summer, Gilead is allowing some generic-drug makers to produce versions of its antiviral treatment remdesivir, and companies that are allegedly upcharging for coronavirus-related products are continuing to find themselves in court for trademark law violations.

Here, Law360 pulls together all the updates you might have missed, including a contentious fight over the future of source code access during discovery.

Litigation

The Federal Circuit and the Western District of Texas have again limited or called off in-person proceedings to further social distancing measures to curb the pandemic. The Federal Circuit said on May 11 that it will be hearing June oral arguments over the phone or deciding cases on the briefs.

In Texas, the chief judge said all civil and criminal bench and jury trials scheduled through June 30 will be continued to a later date. He said judges could continue to hold in-person hearings and conferences, but that "parties are encouraged" to request to participate by phone or video.

The appeals court also notably issued its first Rule 36 judgment to come out of a case decided on the briefs due to COVID-19. In all other cases where the court has not heard arguments, it has issued a full opinion, not a one-line order.

In that case, the Federal Circuit on May 11 upheld a Patent Trial and Appeal Board decision that ESET LLC failed to prove that a Finjan computer antivirus patent is invalid.

Limited contact has also thrown a wrench into discovery in litigation between Canon Inc. and TCL Electronics Holdings Ltd. Canon has subpoenaed the source code of a TCL partner, Roku Inc., and now the companies are fighting over whether that source code can be accessed remotely by Canon's attorneys and experts.

Hulu LLC jumped into that fight with an amicus brief Wednesday, noting that while the pandemic does present unique challenges, allowing source code to be accessed in an uncontrolled environment is both too expensive and too dangerous.

While courts are slowing down their in-person operations, litigation has certainly continued, and makers of hot-ticket items like hand sanitizer and disinfectant wipes are finding themselves in court.

On May 8, Lysol maker Reckitt Benckiser LLC was accused of stealing patented packaging technology that keeps its Clorox disinfecting wipes moist. Perimeter Brand Packaging LLC, which licensed patented packaging to the Clorox Co. until 2015, accused Reckitt Benckiser of selling packaging designs that infringe its patents on methods for a moisture-retaining seal on an open-ended canister.

Then on Tuesday, a digital health care startup called Healthvana sued the company behind the "As Seen On TV" slogan for selling what it called overpriced hand sanitizer under the same name during the COVID-19 pandemic. The suit claims Telebrands Corp. violated federal trademark law by using the Healthvana name on $15 bottles of sanitizer, leading to a wave of backlash against the company from angry consumers.

And finally, supplement seller and "lifestyle company" Le-Vel Brands LLC on Tuesday accused Marc Ching and his company Whole Leaf Organics of infringing its "Thrive" trademark with his own supplements. The Federal Trade Commission has accused Ching of promoting his Thrive supplement as treating and preventing COVID-19, which led to a preliminary injunction.

"In the midst of the unprecedented global COVID-19 pandemic, for which there is currently no known cure, defendant's disingenuous and misleading claims that its Thrive supplement can treat, prevent, and/or cure COVID-19 exacerbates the damage to Le-Vel caused by defendant's infringing use of Thrive due to the imputed belief that Le-Vel and its well-known Thrive products are or are likely connected with the activities that the FTC policed and enjoined," the complaint states.

Ching didn't immediately respond to a request for comment on the trademark suit, but he did stipulate to the preliminary injunction.

COVID-19 Treatments and Vaccines

On Tuesday, Gilead Sciences Inc. announced that it had struck deals with Mylan and other generic companies to make and sell its experimental COVID-19 drug remdesivir for 127 countries — not including the U.S. The companies based in India and Pakistan entered nonexclusive licensing deals to manufacture generic versions of the drug, which they can sell at the prices they choose.

The companies won't have to pay royalties until the World Health Organization declares that the novel coronavirus is no longer an international health emergency, or until a non-remdesivir product or vaccine is approved to treat COVID-19, Gilead said.

Then on Thursday, the presidents of Ghana, South Africa and Senegal, along with Pakistan's prime minster and many more government officials and nonprofit leaders, issued an open letter calling for any COVID-19 vaccines, treatments, diagnostics and related technologies to be widely accessible and free to people around the world.

"Now is not the time to allow the interests of the wealthiest corporations and governments to be placed before the universal need to save lives, or to leave this massive and moral task to market forces," the letter states. "Access to vaccines and treatments as global public goods are in the interests of all humanity. We cannot afford for monopolies, crude competition and nearsighted nationalism to stand in the way."

In the U.S, a group of senior House Democrats had been pushing to ban exclusivity on COVID-19 related drugs, but when the party released its sweeping $3 trillion proposal for the next coronavirus relief package on Tuesday, that patent ban wasn't part of the offer.

And lastly, on another vaccine front, the FBI and U.S. Department of Homeland Security warned Wednesday that hackers backed by the Chinese government are aiming to steal American research on vaccines and treatments for the COVID-19 virus, part of a spike in cybersecurity threats during the pandemic.

U.S. officials did not provide any details on which organizations had been compromised or targeted or proof that the Chinese government had ordered the attacks, saying only that the FBI is investigating. But the authorities — saying they aimed to raise awareness of the issue — urged U.S.-based organizations involved in COVID-19-related research to be vigilant about cybersecurity, including by quickly patching known security vulnerabilities in their networks.

--Additional reporting by Ryan Davis, Lauren Berg, Bill Donahue, Andrew Kragie and Ben Kochman. Editing by John Campbell.

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