By Dani Kass

Law360 (October 9, 2020, 7:36 PM EDT ) In this round of intellectual property updates tied to the COVID-19 pandemic, Moderna said it would hold off on enforcing certain patents and Ed Sheeran said getting to the U.S. for a copyright trial may be impossible, among many other litigation updates. 

Vaccine Development

Moderna Therapeutics, the most-watched company in the race for a COVID-19 vaccine, said Thursday that it won't enforce seven patents related to its vaccine during the pandemic, an unprecedented move in an industry known for vigorously protecting its intellectual property.

The Massachusetts-based biotechnology company said it has a "special obligation" to make its intellectual property for mRNA vaccines and therapeutics available to other companies attempting to make a vaccine during the pandemic.

"Moderna will not enforce our COVID-19 related patents against those making vaccines intended to combat the pandemic," the company said in a statement. "To eliminate any perceived IP barriers to vaccine development during the pandemic period, upon request we are also willing to license our intellectual property for COVID-19 vaccines to others for the post-pandemic period."

Two days earlier, Republican U.S. senators had unveiled a new bill that would let the president sanction and revoke the visas of foreigners aiming to steal American research on vaccines and treatments for COVID-19, as cybersecurity threats during the pandemic have continued to increase.

Sens. Thom Tillis, R-N.C., chairman of the Senate Judiciary Subcommittee on Intellectual Property, and Marsha Blackburn, R-Tenn., said on Oct. 6 that the Defend COVID Research from Hackers Act would give the president more authority to take swift action against those attempting to cause a cyberattack related to virus research.

The bill would allow the president to block property transactions of alleged hackers, ban them from entering the U.S., revoke their visas and apply sanctions. In order to impose sanctions, the secretary of state and director of national intelligence would have to provide a report to Congress detailing the alleged activities and their impacts.

New Litigation

On Oct. 5, San Diego-based Allele Biotechnology and Pharmaceuticals Inc. sued Pfizer Inc. and Regeneron Pharmaceuticals Inc., accusing them of poaching technology in their development and testing of COVID-19 vaccines and treatments.

The suits in California and New York federal courts claim the pharmaceutical giants infringed Allele's patented mNeonGreen technology, which it said is an important reagent used to develop therapeutics for the virus. The technology was patented in 2019, and it's used in testing antibody and vaccine candidates, Allele said.

Notably, the technology was used in Regeneron's experimental "antibody cocktail" given to President Donald Trump. Hundreds of organizations and universities have licensed the mNeonGreen technology, but Pfizer and Regeneron aren't among them, according to Allele.

Litigation Updates

A trial in the Western District of Texas between Roku Inc. and MV3 Partners LLC over streaming media technology patent finally launched on Oct. 5, after multiple coronavirus-related delays.

On the first day, attorneys for MV3 and Roku wore face masks while seated at their tables but removed them to present their openings to jurors. U.S. District Judge Alan D. Albright told attorneys, before bringing the jury in, that whether they wore masks the entire time or not was up to them.

Law360 also looked at how two different judges in Texas are addressing trials during the pandemic. For example, U.S. District Judge Rodney Gilstrap in Marshall says seeing trial participants' faces is so important that he orders empaneled jurors and attorneys sitting at counsel tables to wear only face shields, compared to the choice offered by Judge Albright in Waco.

And while not about IP, the Federal Circuit held its first-ever remote oral arguments as an en banc court on Thursday, in a fight over the U.S. Department of Veterans Affairs' administrative manual governing benefit claims.

Courtroom Complications

In the Eastern District of Texas, Apple on Oct. 6 said special court entrance rules should apply to its senior director of IP litigation for an Oct. 26 patent damages retrial against VirnetX.

Redactions in the document obscure the exact details of the situation, but Apple said David Melaugh would not be able to attend key proceedings absent an exemption by the court. The company wants Melaugh to be allowed in before his 14-day quarantine period ends, but with a negative COVID-19 test in hand.

Counsel for Ed Sheeran likewise said litigation against the musician is being complicated by COVID-19 travel rules.

Sheeran is facing a Nov. 12 trial date over allegations that his hit single "Thinking Out Loud" is too similar to the copyrighted sheet music for Marvin Gaye's tune "Let's Get It On." But that date would be nigh impossible for Sheeran and his U.K.-based people to make, Sheeran's lawyer said on Oct. 2.

With the coronavirus still spreading rampantly and much travel restricted, Sheeran and other key defense witnesses "are not allowed to even travel to the United States from the U.K. Thus, it is not a matter of quarantining in New York for 14 days before trial. It is a matter of actually not being able to get here from the United Kingdom," his attorney said.

Setting Trial Dates

Also on Oct. 2, a California federal judge again delayed Finjan's patent infringement suit against Cisco because of the pandemic. U.S. District Judge Beth Freeman moved the trial from Oct. 19 to Nov. 2, but wouldn't push it to January as Cisco had requested.

Three days later, a Virginia federal judge scheduled the trial in Jaguar Land Rover Ltd.'s suit accusing Bentley Motors Ltd. of infringing a vehicle control patent, to start on Feb. 23. It had originally been set for October, but was taken off the calendar in April over coronavirus concerns.

--Additional reporting by Katie Buehler, Kevin Stawicki, Cara Salvatore, Britain Eakin, Hailey Konnath and Lauren Berg. Editing by Haylee Pearl.

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