News and Commentary
The World Health Organization announced its partnership with COVAX participants to create an mRNA vaccine technology transfer hub alongside a consortium of South African institutions. This is part of WHO’s general push for a global COVID mRNA vaccine technology transfer hub to expand global production of vaccines.
The Second Circuit Court of Appeals has upheld sanctions against copyright troll Richard Liebowitz for misconduct during litigation back in 2019, where he lied to the court about the registration status of a photograph which was the subject of an infringement suit, in addition to making several other false statements and violating judicial orders.
Last week, the Senate Judiciary IP Subcommittee held a hearing on the importance of patent quality. It was a bipartisan affair, with witnesses agreeing on the importance of patent quality and a focus on the importance of improving the USPTO’s capacity to examine prior art and determine which inventions are, in fact, real and reduced to practice. This last point was made particularly well by Professor Jorge Contreras, who highlighted the example of Theranos as a firm which fraudulently asserted patents on nonexistent technology.
Following the Supreme Court’s ruling and remedy Arthrex, the USPTO Director will have the ability to directly review decisions by the Patent Trial and Appeal Board, opening the possibility of political decision-making in questions of patent validity. However, Dennis Crouch in PatentlyO Makes the valuable point that while patents are political, since the USPTO Director is a political appointee, it won’t be a Wild West since the decisions made bust still be “not-arbitrary, in accordance with the law, and supported by substantial evidence. 5 U.S.C. § 706.”
In IAM, Einav Zilber discusses the implications of a TRIPS waiver on the global innovation ecosystem. While she is generally critical of the TRIPS wavier’s scope and implications for innovation policy more broadly, she does recognize that it could have significant benefits in inducing pharmaceutical companies to collaborate more liberally with member states.
In Techdirt, Glyn Moody discusses a recent ruling out of Germany’s Federal Court of Justice on the liability of online platforms when users upload works protected by copyright. While this decision may well be in tension with the functional requirements of the newly implemented Copyright Directive, the court found “the operator of a video-sharing platform or a file-hosting and -sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content, within the meaning of [EU] Directive 2001/29 [on copyright], unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.”
A briefing paper from the Third World Network discusses the implications of trade secret restrictions in TRIPS. Article 39 of TRIPS discusses trade secrets (called “undisclosed information”) and how member states are obligated to prevent their disclosure and unfair commercial exploitation when such information is submitted for pharmaceutical drug approval. A TRIPS waiver, such as the one proposed at the WTO, would remove such requirements on WTO member states and be a beneficial way to ensure information normally kept secret is disclosed to countries with latent manufacturing capacity.