Not Only Will We March Again: Committed, Resilient IP Lawyers Marching Still in Time of COVID

A few weeks back, as remote working and social distancing were becoming the order of the day (and interesting phrase, given what quickly became the norm in many US states and cities, as executive orders abounded), my son tossed a statement in my direction that was both compliment and challenge: “Isaac Newton developed calculus, among other discoveries and achievements, and Shakespeare may have written King Lear, during quarantine and social distance periods. You’re not them, but you’re pretty smart so I am expecting something.” Offering him this blog post, or some of the other things I have written or said in the last few weeks, is probably not what he had in mind.  But it did get me thinking about what intellectual property lawyers and others can do, and have been doing, as we practice law in the time of COVID.

Some intellectual property owners, regulators, courts and lawyers have very directly stood at the cross-rounds of intellectual property rights, patents, and the pandemic.

For instance, AbbVie is a drug manufacturer that has announced that it would not enforce its patent rights for an HIV medication knows as Kaletra if it proves effective in combatting COVID-19. Numerous other pharmaceutical companies and medical device companies around the world are wrestling with similar decisions, and relying on lawyers, in-house and outside, to advise them on the best ways to protect property and patients simultaneously, as drugs and methods are developed, and devices manufactured and improved. In fact, on March 31, 2020, a number of scientists and intellectual property lawyers took the Open COVID Pledge, noting that:

Immediate action is required to halt the COVID-19 Pandemic and treat those it has affected. It is a practical and moral imperative that every tool we have at our disposal be applied to develop and deploy technologies on a massive scale without impediment.

We therefore pledge to make our intellectual property available for use in ending the COVID-19 pandemic and minimizing the impact of the disease, free of charge and without encumbrances.

We will implement this pledge expeditiously through a formal license agreement, such as the Open COVID License.

[Open COVID Pledge (emphasis in original)]

They are seeking rights owners to join the pledge as well.  Some countries, like Canada, have even laid the ground work for making such results less than voluntary, as Kevin Shipley explained in his ILN post last week.

Yet, others are trying to own the term COVID, with 33 trademark applications pending in the USPTO as of March 30, 2020 that use that term as part of the applied-for mark …