The global pandemic and the US elections obviously dominated the news in 2020, but there were also a number of developments in the area of intellectual property law.
Here are some highlights:
As we discussed here, Moderna, a biotechnology company based in Cambridge, Massachusetts, that “is a pioneer in the development of messenger RNA (mRNA) vaccines and therapeutics” stated that it wouldn’t enforce its COVID-19-related patents against other companies making vaccines to fight the virus.
The Moderna two-dose vaccine has been found to be 94.1% effective in preventing COVID-19, according to the CDC.
The Moderna vaccine and other vaccines were developed and tested in record time, and millions of doses have already been administered all over the world.
To further expedite innovation, as we reported here, the United States Patent and Trademark Office (USPTO) recently launched the COVID-19 Response Resource Center to provide improved access to USPTO initiatives, programs, and other helpful intellectual property (IP)-related information regarding the COVID-19 outbreak.
As we discussed in this blog, when a patent is “standards essential” (with reference to a technical standard like WiFi) it needs to be licensed on fair, reasonable, and non-discriminatory (FRAND) terms.
The problem is, companies can disagree on what terms are FRAND -- and so can courts.
A court in one country can decide terms are “fair” for licenses not only in that country but all over the world.
As we discussed here, the Federal Circuit ruled that a clause in an employment agreement that requires an employee to assign to the employer any invention that the employee may “hereafter… conceive” “in any way connected to any subject matter within the existing or contemplated business of Company” is void under California law.
Since similar provisions appear in many employment agreements, this is an important case for both employers and employees and may cause employers to rethink the wording in their employee agreements.
In Arthrex, Inc. v. Smith & Nephew, Inc., Federal Circuit held that administrative law judges on the Patent Trial and Appeal Board (PTAB) are appointed in violation of the Appointments Clause of Article II of the US Constitution.
As we discussed here, The United State Supreme Court recently granted three petitions for certiorari that challenged the Federal Circuit’s ruling.
As we noted, if the Supreme Court decides that the PTAB judges were appointed unconstitutionally, then ALL those 10,000 decisions by the PTAB to date could be open to challenge – leading to chaos in the patent law system.
The Zoom video-conferencing platform has been one of the key technologies used during the pandemic.
The first US Supreme Court oral argument on Zoom was in the case of the Patent and Trademark Office v. Booking.com.
The Booking.com case was also important in that it clarified that a generic term (like “Booking”) combined with a top-level domain (like “.com”) can be protected as a trademark.
However, as we discussed here, information shared on Zoom isn’t private and confidential unless the participants make an effort to protect it.