The biggest impacts of COVID-19 haven’t even begun to be felt by businesses. Governments are focusing on how to keep people healthy and heal the affected, and shareholders are shivering at falling stock prices. However, the most significant impact we are watching at Global Patent Solutions could come when the dust starts to settle. At that point, public pressure could lead legislators and regulators to reevaluate the way medical patents are granted. They may also reconsider the rights of patent holders whose inventions improve health and save lives. Any ill-advised or knee-jerk change to the fundamental rights of patent holders could have profound ramifications on innovation and investment for years to come.  Extreme caution needs to be exercised before even considering making any such changes.

Global Mobilization

Governments around the world declared a global war on COVID-19. They have mobilized significant resources to counter the damage to economies and public welfare caused by the pandemic. This includes the efforts of private companies, including Tesla, GM, 3M, and hundreds of others who have offered to produce everything from N95 respirators to ventilators.

Of course, by doing so, many of these entities are actively engaging in patent infringement with tacit government support. Indeed, the Defense Production Act authorizes the government to force companies to produce critical medical goods. Companies seeking relief via litigation could very easily find their claims dismissed based on the rights granted to the infringing entity by the DPA. Indeed, federal law prevents patent holders from pursuing lawsuits against these manufacturers when the product is produced at the government’s request.

Mitigating the Risk of Public Backlash

The team at Global Patent Solutions has watched closely as concerns over the price of prescription drugs and medical equipment have grown significantly in recent years. Companies seeking patent-infringement claims over medical devices now or in the near future may need to proceed with a degree of caution. There are already growing whispers from DC that legislators are considering legislation that would curtail the duration of medical patents and extend government authority over patented technologies in response to national emergencies.

While patent infringement claims could result in significant public backlash and trigger negative sentiment towards a company, medical patent holders can still pursue royalty payments through the US Court of Federal Claims. With this option, contractors are still liable for any royalty demands made by the patent holder for any products manufactured by the company at the behest of the federal government.

The Emergence of the 3-D Minefield

3-D printing has created a completely unprecedented minefield for companies to navigate. Modern CAD software and advances in printing technology now allow Average Joes around the world to print everything from N95 masks to respirator valves in their living rooms.

This is an unapproved use of the patent. Unregulated manufacturing of patented medical devices creates significant risks for the public and healthcare workers. Moreover, these producers are not authorized by the government to manufacture these devices and are thus not protected by the Defense Production Act against patent infringement claims.

Tracking down and pursuing each and every individual who printed a medical device and then used, sold, or donated them could take decades and require significant resources invested around the globe. A more effective approach may be to pursue those who upload the CAD files and those who distribute them. In this regard, the objective isn’t compensation for lost royalties; it is the deterrence of future patent theft and protecting the integrity of the company’s products and the supply chain that hospitals and healthcare providers depend upon.

We invite you to contact Global Patent Solutions at (877) 274-2011 for more information about our services. It is our pleasure to help you navigate the shifting global environment and the possible evolution of patent law our team sees on the not too distant horizon.