Tag: Intellectual property

CosmoKey Gets a Duo-Over – Federal Circuit Panel Reverses Finding of Ineligibility

In CosmoKey Solutions GMBH & Co. KG v. Duo Security LLC, No. 2020-2043 (Fed. Cir. Oct. 4, 2021), the Federal Circuit reversed a finding of ineligibility for claims directed to a computer authentication method.

CosmoKey’s patent is directed to an authentication method that requires a user to activate a timed authentication function on a mobile device to log into a computer. Duo Security moved for judgment on the pleadings. The district court found the claims ineligible under § 101, specifically finding that the claims were directed to the abstract idea of “authentication” at step one of Alice, and that the remaining elements were generic computer functionality at step two.

The Federal Circuit reversed. The majority first stated it was “not convinced” the claims were broadly “directed to” authentication, instead noting the focus of the claims and the specification on the activation of a timed authentication function. Nonetheless, according to the majority, answering this question at step one was “unnecessary” because the claims were eligible at step two for reciting a specific improvement to authentication that “increases security, prevents unauthorized access by a third party, is easily implemented, and can advantageously be carried out with mobile devices of low complexity.”

Judge Reyna concurred in the judgment, but did so by resolving the inquiry at step one, finding the claims directed to a “specific improvement to authentication.” He viewed the majority’s decision to skip step one and resolve the inquiry at step two as “turn[ing] the Alice inquiry on its head.” He noted that, without the step one analysis, it is difficult to determine whether “additional elements transform the nature of the claim into a patent-eligible application” of an abstract idea.

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
For more patent litigation, visit the NLR Intellectual Property Law section.

SDNY: Use of Photojournalists’ 9/11 Footage May Be Fair Use

A firefighter digging through rubble. An ambulance being lifted out of the wreckage. Photographs of these and other somber scenes from downtown Manhattan on September 11, 2001 formed the basis of photojournalist Anthony Fioranelli’s copyright infringement case against several media organizations that allegedly used these photos without permission. Recently, the S.D.N.Y. issued a mixed ruling on whether use of these harrowing-yet-iconic photos was fair.

Background

Plaintiff Fioranelli was one of four reporters allowed access to Ground Zero immediately after the September 11, 2001 terrorist attack on the World Trade Center (“9/11”). Fioranelli compiled his raw footage of Ground Zero and registered it with the Copyright Office (the “Content”). CBS licensed Fioranelli’s Content and agreed to pay Fioranelli for each use of any portion of the Content, but later created multiple newsreels and licensed them to other media organizations without Fioranelli’s permission and without compensating Fioranelli for those further uses. Fioranelli sued CBS and its purported sublicensees, including BBC, A&E Television Networks, and Paramount Pictures (among others), alleging that sixteen works—including the CBS newsreels, ten documentaries/docuseries, a docudrama, a “making of” featurette, a religious TV program, and two programs exploring/debunking conspiracy theories—infringed his copyright in the Content. The parties moved for summary judgment, with the defendants seeking a judgment from the court that their use was de minimis and fair.

De Minimis Use

While there was no dispute that the defendants actually copied Fioranelli’s Content, the parties disputed whether the amount copied was legally actionable. The defendants relied on a quantitative analysis, arguing that because they used only a small portion of Fioranelli’s total footage, their use was de minimis.

The court disagreed, holding that a defendant’s quantitatively brief display of a copyrighted work, “when conspicuously displayed, can be actionable.” Applying this standard, the court found that defendants prominently displayed the Content in fourteen of the sixteen challenged works, which contained a full-screen depiction of Fioranelli’s Content. The court noted that the Content was “not mere background footage” but was “clearly observable” and “the focus of the film when shown.” The court further found that the remaining two works—a docudrama and its “making of” featurette—used the Content as the focal point of an entire scene and were also not de minimis. Accordingly, the court denied defendants’ motion for summary judgment on de minimis use, finding that the qualitative prominence of defendants’ uses (i.e., to occupy an entire screen or as the focal point for the viewer) outweighed the quantitative brevity of such uses.

Fair Use

Regarding defendants’ motion for summary judgment on fair use, the court analyzed the four familiar fair-use factors.

Regarding the second factor (the nature of the copyrighted work), the court found that photojournalism (like Fioranelli’s Content) consists primarily of non-fictional renderings of historical events, and often precludes substantial demonstrations of creativity. As such, the nature of the Content—which was non-fictional and historical—weighed in favor of the defendants.

As for the fourth factor (the effect on the potential market for the copyrighted work), the court found that defendants’ uses were paradigmatic of the market for the Content, i.e., licensing to media organizations and “a clear substitute” for Fioranelli’s Content. The court also found that allowing CBS to sublicense the Content to other media organizations without compensating Fioranelli for those sublicensed uses would gravely impact freelance photojournalists, who seek out footage expecting to collect licensing fees for their work. Accordingly, the court found that the fourth factor weighed against the defendants.

As for the first and third factors, the court separately analyzed the alleged infringements. Regarding the first factor (the purpose and character of the use), the court found that some alleged infringements were transformative, whereas others were not, and further found that, for some alleged infringements, fair use issue could not be decided at summary judgment. While the court agreed with Fioranelli that each of the defendants’ uses were commercial in nature, which tends to weigh against fair use, it found that this was not dispositive of the various fair use determinations.

The court found that seven of the challenged works were not transformative because none incorporated Fioranelli’s Content to comment on or critique it, and because those works shared the original purpose of Fioranelli’s Content—to inform the viewer of what happened on 9/11 and its aftermath. In particular, the court held that “[t]he expressive purpose of the original use and the secondary use are the same,” and that defendants’ use of unaltered copies of Fioranelli’s Content to achieve the same purpose that Fioranelli sought to achieve, led the court to conclude that such uses were not transformative.

As for another seven of the challenged works (which included the religious TV program and programs exploring/debunking conspiracy theories), the court declined to make a fair use determination on summary judgment, based in part on defendants’ arguments that their use was transformative because it served a different purpose than Fioranelli’s purpose in creating the Content. For example, the court noted that the programs exploring/debunking conspiracy theories were intended “to educate viewers about conspiracy theories surrounding 9/11” which was not Fioranelli’s original purpose. Similarly, the court held that a reasonable juror could find that use of Fioranelli’s Content to build a political argument was a sufficiently different purpose so as to potentially render the use transformative. Accordingly, the court held that this was an issue to be determined at trial.

The court also found that a docudrama and its “making of” featurette were transformative. The docudrama was a fictionalized retelling of a story of two police officers trapped in the rubble at Ground Zero, wherein Fioranelli’s Content is superimposed on the television that a fictionalized police officer’s family is watching. The court found that the docudrama used Fioranelli’s Content creatively to construct a unique fictionalized setting, not to record or share history. As such, the docudrama’s use of Fioranelli’s Content was found transformative. As for the “making of” featurette, the court found that its purpose was to provide insight into the rationale behind the cinematic choices made in the film, rendering that transformative as well.

As for CBS’ alleged unauthorized use of the Content, the court held the first fair use factor favored Fioranelli for the additional reason that the infringement was in bad faith because CBS removed a watermark reading “NOT FOR BROADCAST” from Fioranelli’s footage before CBS used the footage in its newsreels. The court found that this decision, together with the fact that CBS’ use duplicated Fioranelli’s original purpose and was commercial in nature, led the first factor to weigh slightly in Fioranelli’s favor.

In analyzing the third factor (the amount and substantiality of use), the court referred back to its de minimis use analysis and declined to adopt the defendants’ mathematical, quantitative approach, instead considering whether “the extent of Defendants’ copying is consistent with or more than necessary to further the purpose and character of the use.” For seven works found not transformative, the court found this factor neutral, and for seven additional works the court left this determination for trial, as reasonable jurors could disagree regarding whether the defendants used more of the copyrighted material than necessary for each work’s purpose. For the two uses that the court found transformative (the docudrama film and featurette), the court found that the few seconds of copyrighted material shown on the in-scene television were “no more than necessary to ensure the viewer understood that the family was watching the events of 9/11 unfold on television.”

In sum, the court found that the seven non-transformative uses (the two newsreels and six historical, non-political documentaries) were not fair use; that the two uses that were transformative (the docudrama film and featurette) were fair use; and that for the seven remaining works, fair use could not be decided on summary judgment.

The case is Fioranelli v. CBS Broad. Inc., No. 15-CV-0952 (VSB), 2021 WL 3372695 (S.D.N.Y. July 28, 2021).

This article was written by Brooke M. Wilner and Samuel V. Eichner of Finnegan Law Firm.

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The Naked Truth About Trademark Cancellation: Only Harm, No Proprietary Interest Required

The US Court of Appeals for the Federal Circuit determined that a contracting party that contractually abandoned any proprietary interest in a mark may still bring a cancellation action if it can “demonstrate a real interest in the proceeding and a reasonable belief of damage.” Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, Case No. 19-1567 (Fed. Cir. July 24, 2020) (Reyna, J.) (Wallach, J., dissenting).

Australian sold condoms with the marks NAKED and NAKED CONDOMS, first in Australia in early 2000, then in the United States in 2003. Two years later, Australian learned that Naked TM’s predecessor had registered a trademark NAKED for condoms in September 2003. Australian and Naked TM communicated by email regarding use of the mark for a few years. Naked TM contended that the parties reached an agreement; Australian disagreed and said no final terms were agreed upon. Australian filed a petition to cancel the NAKED trademark registration. Ultimately, and after trial, the Trademark Trial and Appeal Board (TTAB) concluded that Australian lacked standing because it had reached an informal agreement that Naked TM reasonably believed was an abandonment of any right to contest Naked TM’s registration of NAKED. Thus, the TTAB found that Australian lacked a real interest in the proceeding because it lacked a proprietary interest in the challenged mark. Australian appealed.

The Federal Circuit reversed. First, the Court clarified that the proper inquiry was a matter of proving an element of the cause of action under 15 USC § 1064 rather than standing. The Court explained that, contrary to the TTAB’s conclusion, “[n]either § 1064 nor [its] precedent requires that a petitioner have a proprietary right in its own mark in order to demonstrate a cause of action before the Board.” Assuming without deciding that the TTAB correctly determined that Australian had contracted away its rights, the Court found that fact irrelevant. Ultimately, even though an agreement might be a bar to showing actual damages, a petitioner need only show a belief that it has been harmed to bring a petition under § 1064.

The Federal Circuit found that Australian had a reasonable belief in its own damage and a real interest in the proceedings based on a history of two prior applications to register the mark, both of which the US Patent and Trademark Office rejected on the basis that they would have created confusion with Naked TM’s mark. The Court rejected Naked TM’s argument that Australian’s abandonment of those applications demonstrated there was no harm, instead concluding that Australian’s abandonment of its applications did not create an abandonment of its rights in the unregistered mark. Moreover, as a prophylactic rationale, the Court explained that Australian’s sales of products that might be found to have infringed the challenged registration also create a real interest and reasonable belief in harm.

Judge Wallach dissented. Although he agreed that the TTAB erred by imposing a proprietary-interest requirement to bring suit under § 1064, he disagreed that Australian properly demonstrated an alternative, legitimate interest—i.e., a belief of damage with a reasonable basis in fact. Judge Wallach would have given dispositive weight to the agreement between Australian and Naked TM in which Australian supposedly gave up any right to contest Naked TM’s rights in the mark NAKED.

Practice Note: Ultimately, although the majority and dissent disagreed about how to apply the law to the facts, Australian Therapeutic Supplies stands as a firm reminder that something less than a proprietary interest is required in order to challenge a trademark registration. How much less is a fact-specific inquiry.

© 2020 McDermott Will & Emery

For more on trademark cancellation, see the National Law Review Intellectual Property law section.

Adding “.com” to Generic Term May Open Route to Trademark Protection According to Supreme Court

Generic terms—those words that actually name a product or service—are ineligible for trademark protection under current United States trademark law. The United States Patent and Trademark Office (USPTO) decided that adding “.com” to an otherwise generic term was not sufficient to allow trademark registration of the “generic.com” composition. In the matter at hand, the internet website Booking.com was refused trademark registration of its name based on this decision by the USPTO.

On June 30, 2020, however, the United States Supreme Court reversed this decision, holding that adding “.com” to an otherwise generic—and thus ineligible for registration—term may be registered. The Court said, a generic.com term is only generic if consumers and customers take the term, as a whole, as generic. The Court noted that, in the lower court proceedings, evidence had been presented that consumers do not view Booking.com as a generic website to book hotels and such, but rather associated it with a particular company.

The USPTO raised the concern that allowing such trademarks to be registered would be akin to allowing a business to add the word “Company” to a generic term and noted that this is not permitted. The Court, however, noted that, unlike business names, domain names are single use—only one “generic.com” domain name exists for each possible generic term. In addition, the Court said, the USPTO has other tools in its arsenal, such as insistence of a disclaimer of the generic term, to guard against a particular generic.com trademark holder from exerting undue control over other trademarks that include the generic term. This, the Court said, further shows that there is no basis to deny Booking.com the protection of a federally registered trademark.

This decision opens the door to a new category of potentially protectable trademarks: generic terms with “.com” added to the end. However, it is important to note that whether a generic.com trademark could be registered depends in large part on how that trademark is viewed by consumers. Booking.com is registerable because consumers attribute that trademark to a specific company; however, this may not be true in every case. Much of whether a generic.com brand name is going to be able to be trademarked is likely to depend on evidence showing how consumers view the name; such evidence could include consumer surveys, evidence of marketing efforts, and evidence of long-term use. Nevertheless, companies who wish to use their most basic and generic description of the goods and services they offer as a part of a trademark now have another avenue by which to seek protection. However, it will be important to consider and prepare for questions that will likely be raised by the USPTO, including why the particular generic.com trademark is not viewed by consumers as generic, in order to raise the likelihood of obtaining trademark protection.

© 2020 Davis|Kuelthau, s.c. All Rights Reserved

For more on the recent Booking.com decision, see the National Law Review Intellectual Property Law section.

Consumer Perception is Key to Registration of Generic “.com” Marks

In an 8-1 decision, the Supreme Court held in U.S. Patent and Trademark Office v. Booking.com that “generic.com” marks may be registered trademarks or service marks when consumers do not perceive them as generic.

Booking.com is a travel company that provides hotel reservations and other services under the brand “Booking.com,” which is also the domain name of its website. Booking.com filed applications to register four marks in connection with travel-related services, each containing the term “Booking.com.”

A United States Patent and Trademark Office (USPTO) examining attorney and the USPTO’s Trademark Trial and Appeal Board (TTAB) both concluded that the term “Booking.com” is generic for the services at issue and is therefore unregistrable. According to the TTAB, “Booking” means making travel reservations and “.com” signifies a commercial website. The TTAB ruled that customers would understand the term “Booking.com” primarily to refer to an online reservation service for travel, tours, and lodging. Alternatively, the TTAB held that even if “Booking.com” is descriptive, it is unregistrable because it lacks secondary meaning.

Booking.com sought review in the US District Court for the Eastern District of Virginia. Relying in significant part on new evidence of consumer perception, the district court concluded that “Booking.com”—unlike “booking”—is not generic. The “consuming public,” the court found, “primarily understands that BOOKING.COM does not refer to a genus, rather it is descriptive of services involving ‘booking’ available at that domain name.” The Court of Appeals for the Fourth Circuit affirmed the district court’s judgment.

During oral argument at the Supreme Court, the USPTO argued that the combination of a generic word and a “.com” must also be generic. The Court rejected this per se theory, ruling that whether “Booking.com” is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel reservation services. According to the Court, if “Booking.com” were generic, one might expect consumers to understand Travelocity—another such service—to be a “Booking.com.” Additionally, one might similarly expect that a consumer, searching for a trusted source of online hotel reservation services, could ask a frequent traveler to name her favorite “Booking.com” provider. However, as noted even by the USPTO and the dissent, only one entity can occupy a particular Internet domain name at a time, so a “consumer who is familiar with that aspect of the domain-name system can infer that BOOKING.COM refers to some specific entity.”

The Court further opined that the USPTO’s fears that trademark protection for “Booking.com” could exclude or inhibit competitors from using the term “booking” or adopting domain names like “ebooking.com” or “hotel-booking.com” are unfounded. According to the Court, this is an issue for any descriptive mark and comes down to a likelihood of confusion analysis.

Justice Sotomayor’s Concurrence

In a concurring opinion, Justice Sotomayor agreed that there is no per se rule against trademark protection for a “generic.com” mark. However, she cautioned the use of surveys as they can have limited probative value depending on the survey design.

Justice Breyer’s Sole Dissent

Justice Stephen Breyer, the sole dissenting justice, argued that the majority disregarded important trademark principles and sound trademark policy. According to Justice Breyer, “[t]erms that merely convey the nature of the producer’s business should remain free for all to use.” Thus, under the majority’s approach, many businesses could obtain a trademark by adding “.com” to the generic names of their products, which Justice Breyer claimed could have widespread anticompetitive effects, and the majority’s reliance on the need to prove confusion and the statutory descriptive use privilege to protect competitors, underestimates the threat of costly litigation.

Implications

The decision in Booking.com expands trademark protection for seemingly generic marks simply by adding “.com” to the mark. A registrant need only rely on the consumer’s perception of the mark, which can be shown by the use of surveys. Thus, even with Justice Sotomayor’s caution against the use of surveys, surveys are likely to become more important during the registration process and in any subsequent litigation.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.

For more on the Booking.com case, see the National Law Review Intellectual Property Law section.

There’s a Fake News Pandemic. Could COVID-19 and Trademarks be the Cure?

As political divides widen, accusations of differing viewpoints being “fake news” have become almost commonplace.  But during the COVID-19 pandemic, fake news has taken a more dangerous and sometimes deadly turn.

Fake news stories with fabricated COVID-19 data, sensational origin stories (it was NOT predicted by Nostradamus or created in a lab in China as a biological weapon), and baseless advice on how to protect against the illness are spreading almost as fast as the virus itself.

Fake news around COVID-19 has been directly linked to higher rates of infection, a rise in hate crimes and discrimination, increased anxiety, and further economic devastation, all of which exacerbate the current pandemic.  Even more troubling, information learned from fake news is more persistent and longer-lasting in a reader’s mind than genuine news sources because of its often sensational nature.

Fake news is a pandemic, and thus far, there is no cure.

Fake News: A brief history

Fake news is defined as “fabricated information that mimics news media content in form but not in organizational process or intent.” Although real news outlets may sometimes print opinion pieces that are more conjecture than fact, or even occasionally erroneously report particular facts amounting to poor reporting, their intent is to report noteworthy information, especially about recent or important events. Fake news, on the other hand, disguises itself as real news in an attempt to “cloak itself in legitimacy and to be easily shareable on social media” without any genuine intent to inform the public or attempt to be truthful.  Rather, it is intended to get clicks (e.g., readers) so as to increase advertisement sales.

Fake news isn’t new.  Its roots can be traced back to at least as early as the sixth century A.D.40 when Procopius, a Byzantine historian, disseminated false information, “known as Anecdota [to] smear the reputation of the Emperor Justinian.” Social media and online advertisement sales, however, have turned it into a seemingly unstoppable beast.

With social media, it is easier than ever to rapidly spread information without verification of the contents or source. Approximately seven-in-ten Americans (of all ages) currently use social media to connect with others and engage with news content, and approximately 43% of adults get their news from Facebook.

With the mere click of a button, a completely fabricated story can be instantly shared with hundreds of people, who in turn can share the story with hundreds more, and so on and so on.  The more click-baitey (i.e., catchy) the title, the quicker the story spreads and the more advertising money the author generates.

Unfortunately, in today’s climate, sensationalism is often more rewarding than the truth.

Legal Avenues are Ineffective to Combat Fake News

Fake news generally takes one of three forms:

  • Type 1-Spoofing: A content provider spoofs a legitimate news source to confuse consumers as to the source of the information (e.g., a fake FORBES Webpage circulating fake articles);

  • Type 2-Poaching: A content provider creates a publication that is intentionally confusingly similar to a recognized news source (e.g., registration of washingtonpost.com.co with a home page that mimics the WASHINTON POST) so as to poach consumers intending to visit a legitimate news source; or

  • Type 3-Original Sensationalism: A content provider creates an original publication under which to provide content, but relies on the sensational nature of the publication to disseminate the content via social media platforms.

Spoofing and poaching, as described above, typically violate several trademark laws.  The creation of a Webpage that spoofs a legitimate news outlet or appears confusingly similar to the news outlet’s brand is likely direct infringement of the news outlet’s trademarks.  Similar arguments could be made under the Lanham Act’s unfair competition and dilution frameworks (if a mark is famous enough to be spoofed, it is likely famous enough to be diluted).  Fair use defenses would also likely be unsuccessful (fair use for parody and satire does not apply where the intent is not to parody or satirize, but rather merely to confuse the relevant public and profit off of the goodwill of the mark).

Website owners, however, can sometimes be difficult to identify (they are often in foreign countries) and new sites can be created faster than infringing sites can be identified and shut down.  News outlets can thus wind up incurring large legal fees to shut down infringing sites in a proverbial game of whack-a-mole with little to no chance of recouping their costs from the bad actors themselves who live to infringe another day.

Several spoofing and poaching Websites owned by Disinformedia, a Web-based fake news content provider, have been shut down (see washingtonpost.com.co, nationalreport.net, and usatoday.com.co) as infringing the trademarks of major news outlets, but fake news is still on the rise.  This is because original sensationalism (type 3 above) is the most common form of fake news and it is nearly impossible to halt through legal action.

Fake news content providers have long relied upon free speech protections.  As long as fake news sources do not pretend to be other news outlets or to confuse readers as to the source of their content (i.e., spoofing and poaching), there is little that the legal system can do to stop the spread of information they may publish, no matter how false.  In very exceptional cases of falsehood, defamation suits may succeed, but these are rarely raised and even harder to prove.

Although legal avenues may not be effective at halting the spread of fake news, trademarks may still ultimately hold the key to stopping the fake news pandemic.

How Fake News is Hurting Facebook’s Brand

Social media platform owners have long held that social networks should not be the arbiters of speech. Mark Zuckerberg, CEO of Facebook, has repeatedly argued that Facebook and similar social media platforms were designed to give everyone a voice and bring them together and that to curtail such speech, no matter how false or offensive, would be to stifle free speech.

This has been a hard line for Mr. Zuckerberg and other social media giants like him.  Even after evidence came to light that foreign powers weaponized fake news to affect the 2016 election, Facebook’s official position on this point did not shift.

However, after months of Facebook failing to remove fake news stories surrounding COVID-19 from its platform, nonprofit groups began to label Facebook an “epicenter of coronavirus misinformation” and advertisers began to boycott the social media platform until it reformed its stance on known fake news stories.

Facebook soon released an official statement that it would finally be taking steps to “connect people to accurate information from health experts and keep harmful misinformation about COVID-19 from spreading”.  During the month of April alone, Facebook placed fake news warning labels on about 50 million pieces of content related to COVID-19 and redirected over “2 billion people to resources from the WHO and other health authorities” via an integrated COVID-19 information box and pop-up warnings notifying users that they had engaged with a fake news article relating to COVID-19.

Facebook’s response to COVID-19 misinformation has proven that it can prevent the spread of fake news without sacrificing its commitment to free speech.  If free speech is no longer an impediment to stopping misinformation, then it is time for Facebook to address the prevalence of fake news on its platform.

Seven-in-ten Americans use Facebook, yet over 60 percent of all Americans now believe the news that they see on social media is fake.  Fake news is ultimately hurting its brand.

As Harvard Business School professor David Yoffie explains, social media platforms such as Facebook have developed goodwill (i.e., trust) in their brands over time.  That goodwill is borrowed by every shared news story, whether real or fake.  When Facebook users see articles generated from an unknown source, they believe the article is factual because it is shared by real people on Facebook and subconsciously or consciously assume that Facebook approves the content.

If the majority of Facebook users now believe that the news they see on social media is fake, then they have lost trust in Facebook itself, thus diluting Facebook’s brand.  As fake news continues to dilute the Facebook brand and associated trademarks, Facebook is at risk of further losing goodwill, users, and, perhaps most importantly to Facebook, advertising dollars.

Few would argue that Facebook has an altruistic interest in the spread of fake news on its platform, but the Facebook brand will continue to be diluted if it does nothing to stop the spread of fake news.  Facebook has taken the first steps to identify and target fake news on its platform brand as it relates to COVID-19, but only time will tell if Facebook will expand these measures to apply to other types of fake news stories.

It took COVID-19 to force Facebook to take steps to protect its trademark (i.e., brand) and confront fake news.  Perhaps it takes a pandemic to face a pandemic.

Copyright 2020 Summa PLLC All Rights Reserved

For more on COVID-19 see the National Law Review Coronavirus News page.

China’s New Civil Law Adds Right of Publicity

The Third Session of the 13th National People’s Congress (NPC) voted and passed the “Civil Code of the People’s Republic of China” on May 28, 2020. This law will come into effect on January 1, 2021.  Part IV of the law is dedicated to Personality Rights, which include portrait rights, which is similar  California’s right of publicity and right of publicity for the deceased.  Portrait rights in China were previously protected under the General Principles of Civil Law and the new law provides significant clarification on these rights and also codifies existing case law.

Article 990 defines personality rights as “the rights of life, body, health, name, portrait, reputation, honor, privacy and other rights enjoyed by civil subjects.” However, these rights cannot be waived, transferred or inherited per Article 992.  Even though there is no inheritance, a spouse, children and parents can enforce the deceased rights per Article 994.  This codifies existing law from the Supreme People’s Court  case Zhou Haiying v. Shaoxing Yuewang Jewellery and Gold Co., Ltd., which held a close relative was entitled to sue for a violation of Lu Xun’s portrait right after his death.

Article 995 confirms that plaintiffs are entitled to compensation and injunctions for the violation of personality rights.  Article 996 adds that the compensation may include damages for mental anguish. Article 997 adds preliminary injunctions are available when when “a civil subject has evidence to prove that the perpetrator is or is about to commit an illegal act that infringes on his personality rights, and if he fails to stop it in time, his legal rights and interests will be irreparably damaged.”

Article 1018 defines the right of portrait as “…image that can be recognized by a specific natural person reflected on a certain medium through video, sculpture, painting, etc.” and gives natural persons “…the right to make, use, disclose or permit others to use their own portraits in accordance with the law.”

Article 1019 expands on Article 995 by stating “it is forbidden to make, use or publish portraits of portrait right holders without the consent of the portrait right holders, except as otherwise provided by law.” However, exceptions are provided in Article 1020 including personal use, art appreciation, education or scientific research, news, government use with the required scope of their duties, images of public environments where it is inevitable that people will be present, and public interest.

Articles 1021 and 1022 cover portrait right contracts and are favorable to the portrait right owner.  Per Article 1021, if there is a dispute in the meaning of a term, the explanation should favor the portrait right owner.  Article 1022 covers term of the contracts. If no term is specified, either party may cancel at any time but provide reasonable notice. If a term is specified, the portrait right owner can cancel the contract before the end of term as long as reasonable notice is provided.

Article 1023 states the right to name and voice are also covered similarly by this section IV of Personality Rights with respect to portraits.

The new Civil Law may have a favorable impact on famous foreigners looking to protect their rights in China.  For example, Bruce Lee’s heir has recently sued a fast food chain for portrait right infringement and Michael Jordan has several long running disputes with Qiaodan Sports Co., Ltd. (Qioadan is the Chinese pronunciation of Jordan) over use of his name and likeness and recently won a victory on the trademark side.

© 2020 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.

To Promote Innovation, Congress Should Lessen Restrictions on Injunctive Relief for Patent Owners

Under the U.S. Constitution, a patent conveys an “exclusive right” to inventors so they can prevent others from stealing their inventions. And since the enactment of the Patent Act of 1790, the law has deemed patents to be a form of personal property and specifically provided for injunctive relief, a court order stopping a proven infringer from continuing to use or sell someone else’s invention. Yet, today in the United States, despite this constitutional mandate and grounding in law, many patent holders no longer have exclusive rights to their inventions, nor the ability to obtain iinjunctions.

For much of our country’s history, permanent injunctions were the norm once patent infringement and validity were proven at trial by the patent owner. And getting an injunction depended on facts, not the patent owner’s business model – for example, whether they manufactured or licensed their invention. The practice was stable for all of that time – until recently.

In 2006, in the Supreme Court’s eBay Inc. v. MercExchange, L.L.C. decision, the Court upended this settled practice, ruling that injunctions should not be automatically issued in patent cases and clarifying that courts must apply a four-part test to determine whether an injunction should be granted. The opinion of the Court, authored by Justice Thomas, said little more than that the four factors should determine when an injunction is allowed. However, two concurring opinions expanded on the role of injunctions in patent cases – one, written by Chief Justice Roberts, defended the historic practice of allowing injunctions in most cases, while the other, by Justice Kennedy, pushed in the opposite direction, basing the injunction determination on who the patent owner was and how they used the patent.

For some years after, the pattern of injunction grants changed little. But eventually, it shifted greatly, as lower courts began to make injunction determinations based primarily on the patent owner’s identity. Those who manufacture products continued to get injunctions, while those who chose to license their patents instead, no longer did. This misapplication of the ruling by lower courts has become so widespread that it is now almost impossible for inventors who license their patents to obtain an injunction, even in the face of proven infringement.

It was almost as if the Kennedy minority concurrence became the majority opinion.  And the Roberts concurrence was mostly ignored by the lower courts – even though that opinion highlighted the settled historical practice of granting injunctions for most cases of infringement.

It may not be entirely coincidental that such an outcome was implored by a massive lobbying and public relations campaign conducted by a group of Big Tech mega corporations, mostly based in Silicon Valley. In an effort to reduce patent licensing fees for using technology created by other inventors in their products, these Big Tech companies set out to demonize the patent licensing business model and undermine the ability of inventors to defend patents against infringement. Among their asks, they specifically urged that injunctions should be largely limited to companies “practicing” their inventions by making products and denied to those following the licensing business model, so-called “non-practicing entities,” or NPEs.

Well, this campaign and its complaints about patent licensing, though lacking in evidence, apparently caught the eye of Justice Kennedy, who wrote in his concurring eBay opinion: “An industry has developed in which firms use patents not as a basis for producing and selling products but, instead, primarily for obtaining licensing fees… For these firms, an injunction, and the potentially serious sanctions from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent.”

This line of reasoning overlooks the fact that the patent licensing business model is not a new phenomenon in the commercialization of patented innovation, but has been around since our country’s founding and has served a key role in advancing U.S. innovation. Iconic American inventors, such as Thomas Edison, Alexander Graham Bell, the Wright Brothers, Charles Goodyear and Elias Howe Jr., all licensed their patented inventions to others, who then manufactured the final product and brought it to the masses. And today, many of our nation’s best innovators license their inventions, including universities, hospitals, startups, engineering firms and independent inventors.

What is most striking is that while the U.S. no longer provides injunctive relief to many patent holders, our competitors in Europe and Asia, including China, routinely grant injunctions in similar cases of patent infringement. This is undermining our competitiveness as innovative companies in the U.S. and around the world have an incentive to conduct R&D and patent inventions outside the U.S., where patent protections are now stronger.

Fortunately, Senator Chris Coons (D-DE) and Representative Steve Stivers (R-OH) are sponsoring bipartisan legislation, known as the STRONGER Patents Act, that would restore the traditional right of injunctions to all patent owners, including those who license their innovations. If we have learned nothing else from the Covid-19 crisis, it is the need to incentivize all the technological advances we can, especially the development of new human health technologies. That incentive system works best when all patent owners can equally and fairly use their constitutional “exclusive right” to their innovations. Let’s hope that insight will help jumpstart the legislative advance of the STRONGER Patents Act or other measures to strengthen patent rights and restore injunctive relief.

The opinions and views stated herein are the sole opinions of the author and do not reflect the views or opinions of the National Law Review or any of its affiliates.

© The National Law Forum. LLC
ARTICLE BY Chief Judge Paul Michel (ret.) US Court of Appeals for the Federal Circuit
For more on patenting inventions, see the National Law Review Intellectual Property law section.

The United States Patent and Trademark Office Remains Operational and Flexible During the COVID-19 Pandemic

In view of the COVID-19 pandemic, the United States Patent and Trademark Office (USPTO) recently announced that its offices will be closed to the public “until further notice.”[1] However, the USPTO also assured the public that USPTO “operations will continue without interruption.”[2] Accordingly, applicants can continue to file related documents with the USPTO (e.g., patent applications, trademark applications, and responses to USPTO communications). Applicants can also hold interviews and oral hearings with the USPTO by video or telephone.[3]

Additionally, the USPTO has provided numerous accommodations for applicants that have been affected by the COVID-19 pandemic. As explained in more detail below, such accommodations for affected applicants include:

(I) a 30-day extension of certain patent-related and trademark-related filing deadlines that fall between March 27 and April 30;

(II) waiver of revival fees for (a) abandoned patent applications, (b) terminated or limited re-examination proceedings, (c) abandoned trademark applications, and (d) cancelled/expired trademark registrations; and

(III) waiver of original handwritten signature requirements for (a) registration to practice before the USPTO in patent cases, (b) enrollment and disciplinary investigations, (c) disciplinary proceedings, and (d) non-electronic payments by credit card.[4]

I.  USPTO extends certain filing deadlines for those affected by COVID-19

The USPTO has exercised temporary authority provided by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide a 30-day extension of various patent-related and trademark-related deadlines that fall between March 27 and April 30 for applicants affected by the COVID-19 pandemic.[5] Table 1 summarizes the patent-related and trademark-related deadlines that can be extended under USPTO’s temporary authority.

Extendible patent-related deadlines Extendible trademark-related deadlines
Reply to a USPTO notice issued during pre-examination proceedings by a small or micro entity[6] Response to an Office action, including a notice of appeal from a final refusal
Reply to a USPTO notice or action issued during examination[7] Statement of use or request for extension of time to file a statement of use
Reply to a USPTO notice or action issued during patent publication processing[8] Notice of opposition or request for extension of time to file a notice of opposition
Issue fee payment Priority filing basis
Numerous deadlines related to proceedings before the Patent Trial and Appeal Board (PTAB)[9] Transformation of an extension of protection to the United States into a U.S. application
Maintenance fee payment filed by a small or micro entity Affidavits of use or excusable nonuse
  Renewal application

Table 1.  Summary of patent-related and trademark-related deadlines that can be extended for 30 days for applicants affected by COVID-19.  The deadlines must fall between March 27 and April 30.

In order to obtain an extension of time for an applicable deadline, applicants must request the extension along with a statement that the delay was “due to the COVID-19 outbreak.”[10] Fortunately, the USPTO has broadly identified such COVID-19-related delays to include instances where “a practitioner, applicant, patent owner, petitioner, third party requester, inventor, or other person associated with the filing or fee was personally affected by the COVID-19 outbreak” through various occurrences, such as “office closures, cash flow interruptions, inaccessibility of files or other materials, travel delays, personal or family illness, or similar circumstances.”[11]

Unfortunately, extensions of time are not available for all deadlines affected by the COVID-19 pandemic.  For instance, original filing deadlines, PCT or national-stage filing deadlines, deadlines to file a non-provisional patent application claiming domestic benefit from a provisional patent application, and deadlines to file an inter-partes review petition are not covered.

II. USPTO waives revival fees for matters abandoned or affected due to COVID-19

The USPTO has also agreed to waive revival fees for the revival of matters that were abandoned or affected as a result of applicant’s inability to reply to a USPTO communication due to the COVID-19 pandemic.[12] Such abandoned or affected matters include: (1) abandoned patent applications, (2) terminated or limited re-examination proceedings, (3) abandoned trademark applications, and (4) cancelled/expired trademark registrations.[13] Table 2 provides a summary of the requirements and deadlines for requesting a waiver of revival fees for matters abandoned or affected due to COVID-19.

Matter abandoned or affected due to COVID-19

  Patent applications and re-examination proceedings Trademark applications and registrations
Requirements to waive revival fees
  • Reply to the outstanding Office communication
  • A petition to revive
  • A request for waiver of the petition fee
  • A statement that the delay in filing the reply required to the outstanding Office communication was because the practitioner, applicant, or at least one inventor was personally affected by the COVID-19 outbreak such that they were unable to file a timely reply
  • A petition to revive
    A statement explaining how the failure to respond to the Office communication was due to the effects of the COVID-19 outbreak
Deadline for requesting the waiver of revival fees
  • Two months from the issue date of the notice of abandonment of patent application or notice of termination or limitation of re-examination (“Notice”)
  • Six months from the date of patent application abandonment or termination/limitation of re-examination if the applicant did not receive the Notice.
  • Two months from issue date of the notice of abandonment or cancellation (“Notice”)
  • Six months after the date of abandonment, cancellation or expiration if the applicant did not receive the Notice

Table 2.  Requirements and deadlines for requesting a waiver of revival fees for matters abandoned or affected due to COVID-19.

III. USPTO waives original handwritten signature requirements until further notice

In view of the COVID-19 outbreak, the USPTO is also waiving the requirements for original handwritten signatures until further notice.[14] Accordingly, original handwritten signatures will not be required for the following documents that previously required them: (1) registration to practice before the USPTO in patent cases; (2) enrollment and disciplinary investigations; (3) disciplinary proceedings; and (4) payments by credit cards where the payments are not being made via the USPTO’s electronic filing systems.[15]

IV.  Conclusion

Even though the USPTO is currently closed to the public, the USPTO remains operational.  Furthermore, the CARES Act provides the Director of the USPTO with broad discretionary authority to “toll, waive, adjust, or modify, any timing deadline” established by patent or trademark statute or regulation.  The numerous accommodations already provided by the USPTO should provide applicants that have been affected by the COVID-19 pandemic with flexibility. However, applicants should appreciate that, since the COVID-19 outbreak is a fluid situation, additional changes to the USPTO’s operations and/or further accommodations could be forthcoming.

[1] https://www.uspto.gov/coronavirus

[2] Id.

[3] Id.

[4] Id.

[5] March 31, 2020 USPTO press release entitled “USPTO announces extension of certain patent and trademark-related timing deadlines under the Coronavirus Aid, Relief, and Economic Security Act”.

[6] Such extensions can include a Notice of Omitted Items, Notice to File Corrected Application Papers, Notice of Incomplete Application, Notice to Comply with Nucleotide Sequence Requirements, Notice to File Missing Parts of Application, and Notification of Missing Requirements.

[7] Such extensions can include a final or non-final Office Action and a Notice of Non-Compliant Amendment.

[8] Such extensions can include a Notice to File Corrected Application Papers issued by the Office of Data Management.

[9] Such extensions are: (a) the filing of a Notice of Appeal; (b) the filing of an Appeal Brief; (c) the filing of a Reply Brief; (d) payment of the appeal forwarding fee; (e) request for an oral hearing before the PTAB; (f) response to a substitute examiner’s answer; (g) amendment when reopening prosecution in response to, or request for rehearing of, a PTAB decision designated as including a new ground of rejection; (h) request for a rehearing of a PTAB decision; (i) request for rehearing of a PTAB decision; (j) a petition to the Chief Judge; and (k) a patent owner preliminary response in a trial proceeding, or any related responsive filings.

[10] See USPTO Patent and Trademark notices provided in the March 31, 2020 USPTO press release.

[11] Id.

[12] USPTO’s March 16, 2020 Notice entitled “Relief to Patent and Trademark Applicants, Patentees and Trademark Owners Affected by the Coronavirus Outbreak.”

[13] Id.

[14] FR 17502, Vol. 85, No. 61. March 30, 2020.

[15] Id.

© 2020 Winstead PC.

For more on USPTO operations, see the National Law Review Intellectual Property law section.

Patentability of COVID-19 Biotech, Pharma & Personal Protective Equipment Inventions

The innovative workforce has been redirected.  Spurred by the  Coronavirus pandemic, scientific research that once floundered from a lack of funding has been rejuvenated.[i]  The current innovation upsurge is not out of sheer interest for promoting the useful arts, however, but out of necessity.  Around the world, inventors are developing ways to cope with the new world engendered by COVID-19, from treatments for fighting disease to methods of predicting the next outbreak.

Alongside the proliferation of inventions and discoveries is the issue of financial rewards for these innovations.  Should inventions related to fighting COVID-19 be patentable? Many economists and lawmakers are critical of the exclusivity period granted by patents, especially in the case of vaccines and drugs.  Recently, several members of Congress requested “no exclusivity” for any “COVID-19 vaccine, drug, or other therapeutic.”[ii]

This article examines the patentability of developments in the Biotechnology, Pharmaceutical, and Personal Protective Equipment (PPE)  technology sectors related to COVID-19 and looks into the merits of patent criticism.   Part two of this series examines the Patentability of  COVID-19 Software Inventions – Artificial Intelligence (AI), Data Storage & Blockchain.

The Patentability of Inventions Related to COVID-19 – Biotechnology and Pharmaceutical Inventions

No doubt the most vociferous anti-patent sentiment is directed at the idea of patenting vaccines and treatments which enable companies to price their products well above the marginal cost of production.  Remdesivir, which was recently approved by the FDA for emergency COVID treatment, has a projected cost ranging from $390 to $4,460 per treatment course depending on the mortality benefit.[iii]  But an outright prohibition of patent protection for these inventions is an over-correction of these understandable concerns.  Patent protection has already been eroded over the last ten years and further erosion could lead to a decline in US leadership in the healthcare sector over time[iv]

Disclosure of Ideas

One of the basic principles of having patents is that a period of exclusivity is granted in return for inventors disclosing their inventions to the public, thereby probing further downstream studies and research into the disclosed art. Proponents of patent pools and “open science” argue that the free exchange of ideas will occur without the disclosure requirement that accompanies patent application, pointing to systems like the WHO’s Global Influenza Surveillance and Response System (GISRS).  Under GISRS, experts around the world collaborate to develop each year’s flu vaccine.[v]  GISRS is cited as proof that a patent-less system does not prohibit the disclosure of ideas and findings.[vi]

This type of open science system is not realistic for private companies, however.  GISRS is composed of national collaborating centers that collect data from participating public entities such as federal agencies and state public health laboratories.[vii]  The participants of GISRS have very little commercial stake when it comes to the disclosure of research findings.  A similar system cannot be expected to work in the realm of private enterprise especially in the long term.

Incentive to Innovate

Inventions related to the biotechnology and pharmaceutical spheres are already extremely difficult to patent as it is due to Mayo v. Prometheus Laboratories.[viii]  The Supreme Court found that a therapeutic treatment for a gastrointestinal disorder was not patentable whatsoever, believing that the diagnostics involved in the treatment was similar to patenting a “law of nature.”  The aftermath of Mayo was a significant increase in rejections against patent applications related to biotechnology and pharmaceuticals on the grounds of them being non-patentable subject matter.[ix]  The ongoing cost of prosecution in the face of these rejections was especially damaging to small and medium-sized companies that lack the financial means to repeatedly contend with the USPTO.[x]

Importantly, Mayo is a case related to diagnostics.  Therefore, inventions directed to diagnostics are even more difficult to patent.  It is no secret that the US has struggled when it comes to providing widespread and accurate COVID testing.  Judge Michel of the Federal Circuit believes that Mayo contributed to the country’s unpreparedness for the crisis by eliminating “incentives for private companies to develop diagnostic tests”.[xi]  There are many reasons for the failure of the test rollouts, but the US would have been better positioned to fight the pandemic had the proper innovative incentives been in place for the companies that we now rely on.

Recouping Cost

Currently, Gilead has not yet set a price for remdesivir but will be donating its initial supply of 1.5 million doses.[xii]  Ultimately, they will set a price that will most likely be above the marginal cost of $10 to produce a 10-day course of treatment per patient.  Remdesivir was in the process of R&D for over ten years.  Originally developed for SARS and MERS, the commercial price of remdesivir will not be commensurate with the cost of manufacturing but rather the overall investment towards developing the drug over time.[xiii]  The company also recently announced in a SEC filing that they could invest up to “$1 billion or more” in remdesivir in 2020.[xiv]  Pricing remdesivir marginally above cost will result in a substantial net loss for Gilead that will hurt the company’s incentive to develop further treatments.  This is an unwelcomed fact but ignoring it would be wrong and dangerous.

The Patentability of Inventions Related to COVID-19 – PPE 

Patents are not to blame for the shortage of PPE – Personal Protective Equipment and respirators.  PPE and respirators are primarily manufactured abroad and due to the current disproportionate balance between supply and demand, they are scarce commodities.  But for some reason, the Governor of Kentucky wants 3M to license its patents on the N95 mask so that “everybody else can manufacture it.”[xv]  Even Nobel laureates suggest that 3M’s patents over the N95 mask “have made it more difficult for new producers to manufacture medical-grade face masks at scale.”[xvi]

3M does not have a monopoly over the N95 mask.  No one does.  Honeywell, Kimberly-Clark Corporation, Moldex-Metric, GlaxoSmithCline are just a few companies among many that are listed by the CDC that make and manufacture NIOSH-approved N95 respirators.[xvii]

The Coalition for Breathing Safety forewarned the shortage of respirators in 2006.  Manufacturers of the N95 mask were forced to move offshore due to the cost of defending product liability suits over the tightly regulated masks.[xviii]  Again, patents are not to blame for the shortage and do not stand in the way of manufacturers other than 3M from making these products.

See the next segment: Artificial Intelligence (AI), Data Storage & Blockchain –  the patentability of COVID19 Software Inventions.

The opinions stated herein are the sole opinions of the author and do not reflect the views or opinions of the National Law Review or any of its affiliates.

[i] Robert Langreth and Susan Berfield, Famed AIDS Researcher Is Racing to Find a Coronavirus Treatment, Bloomberg Businessweek (March 20, 2020), https://www.bloomberg.com/news/features/2020-03-19/this-famous-aids-researcher-wants-to-find-a-coronavirus-cure.

[ii] Congressional Progressive Leaders Announce Principles On COVID-19 Drug Pricing for Next Coronavirus Response Package, (2020), https://schakowsky.house.gov/media/press-releases/congressional-progressive-leaders-announce-principles-COVID-19-drug-pricing (last visited May 10, 2020).

[iii] Melanie D. Whittington, PhD and Jonathan D. Campbell, PhD, Alternative Pricing Models for Remdesivir and Other Potential Treatments for COVID-19, Institute for Clinical and Economic Review (May 1, 2020), https://icer-review.org/wp-content/uploads/2020/05/ICER-COVID_Initial_Abstract_05012020-3.pdf.

[iv] Paul R. Michel, To prepare for the next pandemic, Congress should restore patent protections for diagnostic tests, Roll Call (April 28, 2020), https://www.rollcall.com/2020/04/28/to-prepare-for-the-next-pandemic-congress-should-restore-patent-protections-for-diagnostic-tests/.

[v] Joseph E. Stiglitz, Should patents come before patients? How drug monopolies hamper the fight against coronavirus, Project Syndicate (April 23, 2020), https://www.marketwatch.com/story/should-patents-come-before-patients-how-drug-monopolies-hamper-the-fight-against-coronavirus-2020-04-23?mod=article_inline

[vi] Id.

[vii]  U.S. Influenza Surveillance System: Purpose and Methods, Center for Disease Control, available at https://www.cdc.gov/flu/weekly/overview.htm (last accessed May 10, 2020).

[viii] Mayo v. Prometheus, 566 U.S. 66 (2012), available at https://www.supremecourt.gov/opinions/11pdf/10-1150.pdf.

[ix] Mateo Aboy, Mayo’s impact on patent applications related to biotechnology, diagnostics and personalized medicine, Nature Biotechnology (May 3, 2019), https://www.nature.com/articles/s41587-019-0111-5.

[x] Id.

[xi] Paul R. Michel, To prepare for the next pandemic, Congress should restore patent protections for diagnostic tests, Roll Call (April 28, 2020), https://www.rollcall.com/2020/04/28/to-prepare-for-the-next-pandemic-congress-should-restore-patent-protections-for-diagnostic-tests/.

[xii] Sydney Lupkin, Putting A Price On COVID-19 Treatment Remdesivir, NPR (May 8, 2020), https://www.npr.org/sections/health-shots/2020/05/08/851632704/putting-a-price-on-COVID-19-treatment-remdesivir.

[xiii] John F. Cogan, Remdesivir Affirms the American Way, Wall Street Journal (May 1, 2020), https://www.wsj.com/articles/remdesivir-affirms-the-american-way-11588368750.

[xiv] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934, Gilead Sciences Inc., available at http://investors.gilead.com/node/36926/html (last visited May 10, 2020).

[xv] The Netherlands Joins COVID-19 IP Pool Initiative; Kentucky Governor Requests 3M Release N95 Patent, Health Policy Watch (April 8, 2020), https://healthpolicy-watch.org/the-netherlands-joins-COVID-19-ip-pool-initiative-kentucky-governor-requests-3m-release-n95-patent/?mod=article_inline.

[xvi] Joseph E. Stiglitz, Should patents come before patients? How drug monopolies hamper the fight against coronavirus, Project Syndicate (April 23, 2020), https://www.marketwatch.com/story/should-patents-come-before-patients-how-drug-monopolies-hamper-the-fight-against-coronavirus-2020-04-23?mod=article_inline.

[xvii] NIOSH-Approved N95 Particulate Filtering Facepiece Respirators, Center for Disease Control, available at https://www.cdc.gov/niosh/npptl/topics/respirators/disp_part/N95list1-a.html (last accessed May 10, 2020).

[xviii]  Sandy Smith, Six Respirator Manufacturers Warn President of Shortage of Masks, EHSToday (June 22, 2006), https://www.ehstoday.com/emergency-management/article/21912885/six-respirator-manufacturers-warn-president-of-shortage-of-masks.

Copyright (C) GLOBAL IP Counselors, LLP

ARTICLE BY Wen Xie at Global IP Counselors.
For more on COVID-19 protective equipment, see the National Law Review Coronavirus News section.