Extensions for Some, Business as Usual for Others
The U.S. Copyright Office on May 1 announced that it's extending emergency relief related to the pandemic through July 10. That applies to "certain registration claims, notices of termination, and Section 115 notices of intention and statements of account," according to the office.
The U.S. Patent and Trademark Office likewise said it's extending certain patent and trademark filing deadlines until June 1.
Even though courts are physically closed, some trials and arguments are proceeding remotely. The Federal Circuit is holding oral arguments over the phone through May, even though many cases are being decided on the briefs. Google was able to get arguments on a patent appeal reinstated after the company argued that it wanted to "provide opportunities to promising junior and diverse lawyers."
In Virginia, litigation accusing Cisco Systems Inc. of infringing several Centripetal Networks Inc. network technology patents will be heading to a bench trial over Zoom. U.S. District Judge Henry Coke Morgan Jr. on April 23 shot down Cisco's argument that the case was too complex to be tried by video.
And a California federal judge on April 30 told Finjan and Cisco that she's "fairly confident" Finjan's patent infringement suit could come before a jury in June and July, even with COVID-19 social distancing restrictions in place.
Other trial dates were postponed. In New York on April 23, U.S. District Judge Colleen McMahon warned the parties in patent litigation over a nighttime urination medication that she fully intends to try their dispute, "even during a pandemic." However, Ferring Pharmaceuticals Inc. and Serenity Pharmaceuticals LLC pushed back, and the judge agreed on April 28 to move the trial from May to July.
In Michigan, a federal judge on April 28 canceled bench trial dates in Perrigo's $163.5 million tax refund suit over the pandemic. Those refunds are tied to its sales of over-the-counter medication in the U.S. and defenses from patent suits.
A May trial in New Jersey over Zydus Pharmaceuticals' generic version of Janssen Pharmaceuticals Inc.'s diabetes treatment Invokamet has been postponed. In the meantime, patent owner Mitsubishi Tanabe Pharma Corp., Janssen and Zydus agreed to extend a statutory stay on the approval of Zydus' abbreviated new drug application by 120 days from the end of the rescheduled trial.
And in some cases, delays remain a source of dispute. In D.C., a soccer-focused charity has accused the U.S. Soccer Federation of using the pandemic to further delay a trademark lawsuit, when it asked for more time to respond to discovery demands.
Likewise, the company behind the "Clash of Clans" mobile game is pushing back on Japanese game maker Gree Inc.'s attempt to delay a patent fight in Texas using the pandemic.
Timing is also coming into play in prison sentences. The owner of a wholesale distribution company, who pled guilty to orchestrating a scheme to sell counterfeit 5-Hour Energy drinks, on April 20 asked to be let out of prison early given his risks of contracting COVID-19 in jail. Walid Jamil was sentenced to seven years in 2017.
Pushes for Affordability, Access
The push to make intellectual property affordable and accessible to aid the pandemic expanded in April with Amazon, Facebook, Hewlett Packard Enterprise Co., IBM, Microsoft and Sandia National Laboratories joining the Open COVID Pledge. Those who join the pledge grant free and temporary licenses to use their patented and copyrighted technologies in the fight against the novel coronavirus without fear of legal ramifications.
Along the same lines, Doctors Without Borders, Oxfam and around 20 other organizations asked the UK government on April 16 to make any COVID-19 vaccine developed with taxpayer money affordable, to both people in the UK and outside of it.
"There is a real danger that without safeguards, pharmaceutical companies may gain exclusive rights to a new vaccine, which in turn could lead to price gouging and unaffordable prices for millions of people," the letter states.
In an April 22 injunction motion, nonprofit Team Rubicon Global Ltd. alleged that its ability to help victims of the pandemic has been hampered by its brand partner Team Rubicon USA terminating a licensing agreement. While the organizations largely share a name, TRG works with charitable organizations in other countries to help veterans and disaster victims, whereas TR-USA works with U.S. military veterans.
"TRG now faces irreparable damage from TR-USA, is starved for funds and finds itself unable to fully play its integral role to aid the global COVID-19 crisis," TRG said in a statement.
Attempts to Capitalize on the Pandemic
3M Co. has continued its national litigation campaign using trademark law to fight price-gouging of its N95 masks during the pandemic, finding early victories. In the last two weeks, it has filed several new suits, and won temporary restraining orders against Performance Supply LLC and Rx2Live LLC.
Likewise, Medline Industries Inc. on April 23 accused OfficeMart Inc. of violating trademark law by attempting to sell fake Medline personal protective equipment like masks, gowns and gloves to providers, at prices inflated by at least 200%.
The same day, comedian Jeff Dunham accused Ooshirts Inc. of illegally using his name, face and ventriloquism characters to sell T-shirts, coronavirus face masks and other merchandise. He's vowed to donate any award from the California litigation to COVID-19 charities.
At the government level, the U.S. Patent and Trademark Office is facing a flood of trademark applications related to the pandemic, despite the fact that experts say the vast majority of them will be rejected.
Finally, on April 21, the Organisation for Economic Co-operation and Development and the European Union's Intellectual Property Office released a report saying that recent seizures of fake medical supplies that are being targeted at COVID-19 has shown a need to address a growing concern about counterfeit drugs in international trade.
--Additional reporting by Mike LaSusa, Bill Donahue, Hailey Konnath, Tiffany Hu, Daniel Siegal, Dorothy Atkins, Ryan Davis and Theresa Schliep. Editing by John Campbell.
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