Posts Tagged: "COVID-19"

The international economic disruption caused by COVID-19 presents unprecedented challenges. Thriving tech startup companies worth millions in January might find themselves struggling to stay afloat today. This article highlights the value of intellectual property (IP) that companies – particularly small companies without an IP department – can sometimes overlook in times of financial distress. The policy goals behind IP rights are at odds with the goals of bankruptcy law. Bankruptcy laws in the United States are “debtor friendly” and, in their most simplistic form, shield the party from certain debtors while forcing the sale of assets to pay other debts. But court ordered sales tend to undervalue complex property like IP. This is particularly apparent when it comes to patents.

For over a decade, the National Intellectual Property Rights Coordination Center (IPR) has been at the forefront of the United States government’s response to combating global intellectual property (IP) theft and enforcement of its international trade laws. The IPR Center brings together over 25 global partners, including government and law enforcement agencies focused on IP enforcement. Steven Francis is the IPR Center Director and is also the Assistant Director for Global Trade Investigations at Homeland Security Investigations, with over 22 years of federal law enforcement experience. This month, I had the opportunity to interview Francis about the work of the IPR Center, particularly during Covid-19, and how the center is partnering with the stakeholder community through initiatives such as Operation Stolen Promise.  

Certainly, patents that read on a potential cure for COVID-19 deserve special treatment. After all, the cure for COVID-19 is not only crucial to save lives all over the world, but also to avoid the collapse of the global economy. Yet, what such special treatment might look like and how special a treatment is necessary is where opinions diverge. In the United States, activists demand that the government should have the rights to the anti-retro viral drug, ‘Remdesivir’. The Open Covid Pledge proposes that all IP related to COVID-19 should be made freely available. Its founding adopters were technology companies such as Facebook, Microsoft, Intel, IBM and Amazon. In contrast, among pharmaceutical companies, the idea of giving up all related IP for free has been viewed critically. With this in mind, the question is therefore not whether patents related to COVID-19  should be given away for free or not, but rather how the profit motive can be managed in public- private partnerships for the benefit of public health.

Societies are always most vulnerable in times of crisis. Right now, America is in the midst of the COVID-19 outbreak, subsequent economic devastation, and justified nationwide protests for social and criminal justice reform—perhaps an unprecedented level of unrest. As such, it is also perhaps more important than ever for us to demonstrate our ability to unite, cooperate, and innovate. Fortunately, through the improved protection of our intellectual property (IP), America has an opportunity to do exactly that. COVID-19 has demonstrated the equal importance of encouraging and protecting America’s innovators. Worldwide manufacturing shutdowns, part of the global effort to slow the spread, exposed our country’s reliance on China for many of our basic necessities and raw materials. America often generates the ideas of tomorrow. But, until we can generate the ensuing products as well, independence from China will be impossible. This reliance, and lack of investment in domestic production, is proving to have serious consequences.

The COVID-19 pandemic seems to be coming to a slow but steady close in Europe, with no evidence of a spike despite loosening of lockdowns, at least according to outlets like the Washington Post and Wall Street Journal. Although some media continue to report spikes in the number of coronavirus cases in certain states and areas, other media, such as Politico, acknowledge that two weeks after the widespread protests in virtually every major American city started there is no evidence of a spike. Of course, Politico has also reported the exact opposite. Whatever the case may be about whether COVID-19 and the coronavirus are increasing, decreasing, waning, spiking or likely to spell imminent doom, as sure as Americans are tired of being locked down, corporations of all sizes are rethinking their future. Many corporations, from startups to small businesses to the largest multinational technology corporations, have discovered that their workforce can operate just as effectively from home, if not more effectively.

On June 9, the full Senate Judiciary Committee held a hearing titled “COVID-19 Fraud: Law Enforcement’s Response to Those Exploiting the Pandemic.”  The hearing, which was led by Chairman Sen. Lindsey Graham, R-S.C., included testimony by William Hughes, Associate Deputy Attorney General United States Department of Justice, The Honorable Craig Carpenito, United States Attorney District of New Jersey, Calvin Shivers, Assistant Director Criminal Investigative Division Federal Bureau of Investigation, and Michael D’Ambrosio, Assistant Director United States Secret Service Department of Homeland Security. Following an acknowledgment of the tragic death of George Floyd by each of the witnesses, the testimony focused on the response to fraud that has resulted from the COVID-19 pandemic, including the sale of fraudulent personal protective equipment (PPE) and cyber-enabled fraud. In general, Hughes focused primarily on the Department of Justice’s response to criminal conduct relating to the COVID-19 pandemic, Carpenito focused on hoarding and price gouging, Shivers focused on fraud schemes and illicit finance activities that seek to exploit the COVID-19 pandemic, and D’Ambrosio focused on the U.S. Secret Service’s work to counter cyber and financial crimes exploiting the pandemic.

The first half of 2020 has brought so much upheaval and disruption that it is almost hard to contemplate. In the future, there will be entire treatises and dissertations in a variety of fields of study that seek to understand the socioeconomic, psychological and inter-personal dynamics brought to bear. For now, individuals, families, business leaders, government officials— everyone really—are left to figure out what is next in this ever-changing landscape before us, which in the United States has become even more complicated by domestic unrest in virtually every major city. As states are opening up slowly, many businesses— of all sizes really— remain cautious.  Plans to return to pre-COVID normal are being discussed, but how can you, for example, get employees into the office when the U.S. Centers for Disease Control and Prevention (CDC) continues to recommend social distancing of at least six feet? With many offices being in high-rise buildings and elevators being only so large, the logistics of getting staff into and out of the office safely are daunting, let alone the reality that there is no plan for social distancing when using mass transit, for example.

The COVID-19 pandemic and widespread shelter-in-place orders have hit every corner of the country’s economy, including tech companies of all sizes. Many tech companies have traditionally maintained large patent portfolios to enhance company value and for defensive reasons—i.e. to dissuade competitors from filing suit. But monetizing these dormant patent assets—which can cost a great deal to simply maintain—may provide a solution during these difficult economic times. We of course do not recommend asserting any IP right that could hinder a coronavirus cure or treatment. But for companies with large patent portfolios in computer, server, software, and other hardware-related technology, the economic times may be right to monetize those assets, and luckily, the law is trending in favor of patent holders both in district courts and before the Patent Trial and Appeal Board (PTAB).

Intellectual property (IP) is a “bridge to collaboration” between companies, and not just a “weapon of competitive warfare.” The U.S. Patent and Trademark Office (USPTO) launched an IP licensing marketplace, “Patents 4 Partnerships” (P4P), on May 4 that is a platform furthering this ideology. The P4P platform is initially being limited to technologies related to COVID-19 to address the ongoing pandemic. However, USPTO Director Andrei Iancu seems prepared to expand the platform to include other technologies, including artificial intelligence (AI) innovations and cancer treatments, based on interest and engagement during this pilot phase.

On Friday, May 29, the World Health Organization (WHO) officially launched the COVID-19 Technology Access Pool (C-TAP), an initiative which is intended to improve access to treatments, vaccines and other medical technologies which are developed in response to the global COVID-19 pandemic. The program, initially proposed by Costa Rica, has highlighted the tension between pharmaceutical developers and advocates for access to medicine, which has been magnified by the economic concerns created during the global shutdown.

Like most countries, Brazil has been facing severe restrictions in an attempt to slow down the spread of COVID-19.  Non-essential services are currently closed in almost all metropolitan areas and authorities are discussing plans to resume activities while the number of fatalities reaches its peak. In Brazil, the courts have approximately 450,000 employees, including more than 18,000 judges. If we also consider 1.2 million attorneys, it is reasonable to say that the justice system in Brazil involves at least 1.65 million people. The Brazilian Patent and Trademark Office (BPTO) operates on a smaller scale, with no more than 1,000 public officials on duty. The IP community is on average quite smaller in comparison to other areas, such as banking and M&A, but still extremely active. The BPTO hears over 250,000 proceedings per year, including patent, trademark, design applications and contracts.

In the wake of COVID-19, government officials around the world face unprecedented decisions about when and to what extent they should reopen their respective societies before effective anti-viral medications or vaccines have been developed, necessary regulatory approvals obtained, and those solutions are manufactured for public use. Fundamentally, such decisions will require a delicate balance between protecting public health and facilitating economic growth, which, as we have all been reminded this year, are deeply intertwined.

As governments around the globe fight the COVID-19 outbreak, pharmaceutical companies race to develop a vaccine and potentially secure a patent for it. To speed the process, much of that effort builds on known drugs for other diseases. The World Economic Forum reports that 70 potential vaccines are currently in development around the world. According to a BBC report, research is in progress on more than 150 additional drugs globally, with many pre-existing drugs being trialed for potential usefulness in combatting COVID-19. Those which can are giving it their best shot—for people as well as profit. In the wake of this COVID-19 vaccine and patent sprint, questions arise concerning affordable and universal access: will governments, especially poorer ones, be able to secure affordable access to a vaccine if and when one becomes available? Can a patent owner actually be forced to license a COVID-19 vaccine for the benefit of the greater good? The answers are likely yes to both, depending where you are.

Technology innovation in artificial intelligence (AI) is accelerating at a breakneck pace, and the ability to innovate, adopt and integrate AI techniques to evolve business models will separate those businesses that recover from the COVID-19 pandemic from those that will fail. Four artificial intelligence technologies are poised to lead the global economy out of the pandemic-induced recession. Applications for these technologies across verticals abound. Smart strategic and financial investors are scouring the market for new ways to digitally disrupt established businesses. Throughout the COVID-19 pandemic, the importance of sharing critical information across countries about the spread of coronavirus has been emphasized. However, much remains unsaid about how COVID-19 could have been managed more efficiently by using advanced data technologies that have transformed businesses. Here are four areas where AI could change the face of the post-COVID economy

On May 7, the U.S. Patent and Trademark Office (USPTO) published a Notice in the Federal Register regarding the implementation of a new pilot program for COVID-19 related applications (COVID-19 Pilot Program). Under the COVID-19 Pilot Program, the USPTO would grant prioritized examination, similar to the existing Track One Prioritized Examination program, to applications claiming a product or process related to COVID-19, which “must be subject to an applicable FDA approval for COVID-19 use”. Under the program, requests will be granted to qualifying small or micro entity applicants without payment of the typical prioritized examination fees.