By Dani Kass

Law360 (October 2, 2020, 6:05 PM EDT) -- In this round of intellectual property updates tied to the ongoing pandemic, the U.S. Patent and Trademark Office's director, federal judges and in-house patent counsel discussed the pandemic, while trial dates continued to get moved around across the country.

ABA-IPL Conference

At the American Bar Association Section of Intellectual Property Law's virtual IP Fall Institute, USPTO Director Andrei Iancu said he's yet to see evidence that patents will be a "barrier" to access of COVID-19 vaccines and treatments.

Talking to Oracle Corp.'s general counsel on Tuesday, Iancu said that while it is necessary to ensure that critical treatments are widely available to the public, intellectual property rights "must always be respected," especially during crises like COVID-19. He warned that otherwise, companies won't have an incentive to invest substantial time and money into developing treatments for the next global health crisis.

The next day, attorneys from Microsoft Corp., Uber Technologies Inc., Facebook Reality Labs and Getty Images Inc. discussed concerns about how IP work and priorities have changed during the pandemic.

At one point on the ABA-IPL panel, Facebook associate general counsel Stephen McGrath said protecting IP on a broad scale is just as important as ever, but that smaller IP issues are at times seeming less important. He said there have had to be some compromises in confidentiality to get work accomplished, whether it be continuing research, product development or third-party deals.

"I wouldn't call it a wholesale abandonment of a desire to protect IP, but a willingness to be more flexible when it comes to some of the practical issues about interacting with others," he said.

Among other topics, Getty's director of legal risk mitigation, Heather Cameron, said the pandemic has brought in challenges with people not knowing copyright laws in particular. She said there's been "rampant infringement" from customers who don't know they have to clear rights or don't understand that not everything on the internet is public domain.

Then on Thursday, U.S. District Judge Alan D. Albright of the Western District of Texas, U.S. District Judge Maryellen Noreika of Delaware and Chief U.S. District Judge Philip S. Gutierrez of the Central District of California discussed how the pandemic has affected their respective courts.

Judge Albright described the precautions his court is taking for a trial beginning Monday, while Judge Noreika recounted an in-person bench trial during the pandemic, and Judge Gutierrez discussed the district's reopening possibilities.

Litigation

The trial Judge Albright was referring to is between Roku and MV3 Partners LLC, and it's over streaming media patents. While the Western District of Texas is still under a jury trial moratorium imposed by Chief U.S. District Judge Orlando Garcia, division judges were allowed to make their own calls if they felt it was safe.

"The division is confident that, as things stand today, it can conduct fair trials in a safe manner," Judge Albright said on Sept. 23.

In Houston, U.S. District Judge Andrew S. Hanen said on Sept. 23 that Legacy Separators LLC and Halliburton Energy Services Inc. can finish their outstanding patent infringement fight starting on Nov. 30. The retrial will focus on whether two of Halliburton's products infringe Legacy's patent for a downhole gas separator used in oil and gas drilling, a question that a jury failed to answer in March.

The Northern District of Georgia's chief judge said on Sept. 28 that there won't be any jury trials through the rest of 2020.

"Georgia now ranks fourth in the United States in total cases behind only California, Florida and Texas," U.S. District Judge Thomas Thrash said. "While declining from the extreme highs experienced in July, the percentage of those tested for COVID-19 who test positive still exceeds 8%, again among the highest positivity rates nationally."

In California, Cisco Systems Inc. on Tuesday asked to again delay a trial in Finjan's patent infringement suit. Cisco said the trial should be moved from October to January, since the money-driven case doesn't justify risking the health of everyone involved.

Lastly, chemical company PureShield Inc. on Sept. 28 sued Allied BioScience Inc. in Texas federal court, claiming Allied's SurfaceWise 2 surface disinfectant — which advertises protection against COVID-19 for up to seven days — infringes 10 patents.

--Additional reporting by Katie Buehler, Tiffany Hu, Craig Clough, Cara Salvatore and Lauren Berg. Editing by Haylee Pearl.

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