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Law360 (August 7, 2020, 9:27 PM EDT ) In this round of intellectual property updates tied to the ongoing pandemic, attorneys general put pressure on the federal government to make COVID-19 drugs more accessible, patent trials in Texas remain in the air, and one attorney expresses guilt for proceeding with an in-person jury trial.
Remdesivir
Access to Gilead Sciences Inc.'s antiviral drug remdesivir, which the U.S. Food and Drug Administration has granted an emergency-use approval to treat COVID-19, has remained in the spotlight.
On Tuesday, state officials pushed for the federal government to use so-called march-in rights to force the drugmaker to license its patents for the medication. A group of 34 attorneys general told the U.S. Department of Health and Human Services, National Institutes of Health and FDA that "Gilead should not profit from the pandemic and it should be pushed to do more to help more people."
In response, Gilead said it's "deeply disappointed that a group of state attorneys general have chosen to misrepresent facts."
Also Tuesday, consumer advocacy group Public Citizen said the federal government should proceed by itself in developing an alternative to remdesivir if the company continues to sit on its patent holdings for potentially effective drugs to treat COVID-19.
Gilead's alternative to remdesivir — GS-441524 — is simpler and easier to synthesize with considerable advantages over remdesivir, but has been all but ignored by the government and Gilead, consumer advocacy group Public Citizen said in a letter to the company, the FDA and other agencies.
"It is unclear why Gilead and federal scientists have not been pursuing GS-441524 as aggressively as remdesivir, but we cannot help but note that there are significant financial incentives tied to Gilead's current patent holdings," the letter states.
Trials
Western District of Texas Chief Judge Orlando Garcia on Thursday again delayed when in-person trials can resume in his district. He ordered that all civil and criminal bench and jury trials through Sept. 30 be continued.
This means that a patent trial between MV3 Partners and Roku before U.S. District Judge Alan D. Albright will again get pushed back.
In the state's Eastern District, Apple and VirnetX are fighting over whether a $700 million in-person jury retrial should proceed in the decade-long fight over network security patents. During a pretrial conference Aug. 3, VirnetX's attorney called Apple's bid to delay the trial "fearmongering," while Apple highlighted safety concerns.
Law360 also talked with Harold Bruno III of Robinson Waters & O'Dorisio PC, who participated in an in-person trial in Colorado last month, and had some misgivings about doing so. The jury had awarded Bruno's client, Altigen Communications, only a tiny fraction of the roughly $2 million it was seeking in a trademark and copyright infringement dispute.
He said that while he thought the trial was conducted in a safe manner, he felt it was too much to ask jurors to serve in-person during the pandemic.
"I still have some guilty feelings about that," Bruno said. "I'm a person who had COVID and about halfway through the trial I started feeling that it was wrong to bring the jurors in. It's too risky."
--Additional reporting by Kevin Stawicki, Britain Eakin and Daniel Siegal. Editing by Kelly Duncan.
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