By Dani Kass

Law360 (June 26, 2020, 8:15 PM EDT) -- A Texas federal judge authorized a novel way of reviewing source code during the pandemic, mask makers are still bringing trademark suits, and patent litigation between drugmakers in New York is finally ready to go to trial. Here are some recent intellectual property updates tied to the outbreak that you may have missed.

Masks

A Chinese electric car maker turned N95 respirator mask manufacturer on June 22 sued a handful of individuals for allegedly "operating an illegal scheme" to sell counterfeit versions of its masks.

BYD Co. Ltd.'s Lanham Act complaint, filed in Los Angeles, said the buyers — including governments, hospitals and nonprofits — aren't told the masks are counterfeit, leading to doctors, nurses and others on the pandemic's front line to work with defective masks.

The defendants couldn't be reached for comment Friday.

Also on June 22, 3M Co. reached another settlement with a company that it accused of reselling N95 masks at dramatically marked-up rates. According to the consent judgment and permanent injunction filed in Wisconsin federal court, Hulomil LLC will be barred in various ways from deceiving others about the products it's selling.

When asked about the settlement, 3M said "the goal of 3M's legal action is to stop fraud where it's happening and to deter others."

Counsel for Hulomil didn't immediately respond to a request for comment.

Then in Minnesota, a former Marine on Wednesday fought another 3M suit claiming he attempted a multibillion-dollar scam involving the purchase of N95 respirators and fake ties to Bill Gates.

Matthew Starsiak said the business dealings between his company AMK Energy Services LLC and 3M over an attempted N95 deal were "ultimately fruitless," and that since he conducted no business transactions with Minnesota-based 3M, the suit should be dismissed.

On Friday, a Minnesota federal judge granted 3M's motion for a temporary restraining order that enjoins Starsiak and other defendants from using 3M marks or engaging in any misleading conduct in connection with 3M and its products.

Vaccines, Treatments

A Pennsylvania state judge on Thursday rejected vaccine maker Inovio Pharmaceuticals' bid to force its supplier to share its technology with potential rivals in order to mass-produce Inovio's candidate for a COVID-19 vaccine, ruling that Inovio's claims are "too speculative" to justify compromising the supplier's proprietary manufacturing process.

Montgomery County Court of Common Pleas Judge Jeffrey Saltz denied Inovio's petition for a preliminary injunction seeking to require its Texas-based supplier to hand over its proprietary manufacturing technology to up to 10 other companies due to the supplier's purported limited ability to fill Inovio's vaccine requests quickly.

Then on Friday, the European Patent Office published two data sets that it hopes will help with vaccine and treatment research for COVID-19. It said these are the first of the resources it'll be releasing "designed to help researchers and decision-makers benefit from patent information in their fight against the new coronavirus."

Other Litigation

After much back and forth about how to proceed with a trial during the pandemic, Ferring Pharmaceuticals Inc. and Serenity Pharmaceuticals LLC are ready to start with remote proceedings in early July.

In a final pretrial conference Thursday for the dispute over patents linked to anti-diuretic medicines, U.S. District Judge Colleen McMahon said the pioneering case will be "a little weird," but that it'll set an important example from a court that leads the nation in commercial litigation.

In the Eastern District of Texas, U.S. District Judge Robert Schroeder on Thursday greenlit a novel way to review source code that was specially developed by Apple amid its wide-ranging patent dispute with Maxell. He said that in light of the "exceptional exigencies" due to COVID-19, he is allowing for Apple to send laptops to Maxell's reviewers to remotely access the smartphone giant's source code.

Noting that "virtually every state" has restricted movement outside of homes, the judge said Apple's special laptops are a temporary measure "to allow discovery of source code in this action to continue while the public health restrictions are in place."

Back in New York, the Internet Archive received vocal support as four major publishing houses sued the organization over its Open Library project, including its now-ended National Emergency Library meant to increase digital access to books during the pandemic.

The Association of Research Libraries put out a statement on June 22 calling for the lawsuit to end, saying academic and research institutions relied on the Open Library and similar programs "to ensure academic and research continuity at a time when many physical collections have been inaccessible."

Additionally, the Electronic Frontier Foundation and Durie Tangri LLP stepped in to represent the Internet Archive for the fight.

--Additional reporting by Bill Donahue, Craig Clough, Cara Salvatore, Dorothy Atkins and Tiffany Hu. Editing by Adam LoBelia.

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