If you live almost anywhere on planet Earth, these past several weeks have probably been among the most disruptive in your life. Sadly, there is still much uncertainty as to what lies ahead. Nevertheless, we should count our blessings, as most of us in the IP community are fortunate to be able to continue our work remotely, even if doing so brings its own set of challenges – cue meetings with toddlers (or dogs). (I would also bet that most parents have a new appreciation for their kids’ teachers…)
Through this ordeal, we witness new heroes (from doctors and nurses to grocery personnel), and new villains (you know who they are) emerge. Catastrophic events have a way of revealing someone’s true character. Let’s hope kindness and love prevail in the end, as we learn to navigate this new normal.
The IP community definitely hasn’t stayed quiet and there has been a flurry of news related to patents and COVID-19, some showing incredible generosity and others underscoring greed. I tried to capture the main announcements below regarding IP and the current pandemic.
In the coming months, there will undoubtedly be a large number of companies declaring bankruptcy or otherwise shut down permanently. This is a sad reality. For most of those, the only assets of value at the end will be their IP portfolios. We frequently work closely with trustees when these types of situations arise and have therefore prepared some guidance for those liquidating intangible assets for the first time. We recognize that IP is a complex asset class and hopefully this information helps preserve the value of the IP, and ultimately a return to investors and business owners.
On our end, we stay the course representing inventors and innovative clients and will do so as long as we can; indeed, we just announced a new series of transactions earlier this week, as we successfully brokered no fewer than four distinct licenses on a small patent portfolio pertaining to mobile messaging.
Until then, happy reading and stay safe!
COVID-19 and IP
News emerged late last week that a group of scientists and IP lawyers, drawn primarily from academia, have come together to launch a Covid-19 patent pledge designed to ensure that the rollout of any technology related to fighting the pandemic is not hindered by having to navigate associated IP rights. The initiative, which is pushed by academics such as Stanford Law professor Mark Lemley, aims at providing a royalty free license environment to those trying to innovate around better testing, cures and/or vaccines to halt the pandemic. But what about those benefiting from this free head start who themselves generate some new strategic IP? If they have to give it away, as some have suggested, how will they convince their management to finance their research in the first place? The US government is trying to do its part to remove barriers and red tape and a draft Bill is being prepared to that end: the Facilitating Innovation to Fight Coronavirus Act appears to be an attempt to bring any and all viable medical inventions to market as quickly as possible in our fight to defeat COVID-19.
In parallel, many have noted that this might be one of those scenarios where governments around the world can also step in and force a compulsory licensing scheme, so that no single country or class of citizens be among the first lucky few to have access to a cure or vaccine. This is currently being hotly debated around the world and US-based NPE Fortress was caught in the crossfire last week when it stared asserting patents it had itself acquired from infamous blood testing company Theranos (of equally infamous fate Elizabeth Holmes, currently on criminal trial) Fortress was forced (after a public outcry) to confirm that it would make any COVID-19 testing-related patents available royalty free, which did not please everyone. Other companies recently made similar announcements, without the same fanfare though.
In the meantime, some biotech outfits like Seattle-based Gilead have already taken advantage of a loophole to stake their claim to Remdesivir (which they originally developed for other pathologies) as a cure against COVID-19. Others in China are being even more aggressive; they have filed a patent in China for the exact same drug composition as Gilead’s Remdesivir, in essence denying the existence of the US patent and granting itself a brand new one on the exact same invention!
Beyond these maneuvers, everyone can probably agree on the fact that we will have to innovate ourselves out of this crisis in order to speed up the recovery and that it is important to keep the right incentives in place for innovators to thrive, while protecting the public downstream. This part at least is not new.