On March 18, 2020, President Trump issued an Executive Order under authority of the Defense Production Act of 1950. The Executive Order stated: “I find that health and medical resources needed to respond to the spread of COVID-19, including personal protective equipment and ventilators, meet the criteria specified in section 101(b) of the Act (50 U.S.C. § 4511(b)). Under the delegation of authority provided in this order, the Secretary of Health and Human Services may identify additional specific health and medical resources that meet the criteria of section 101(b).”
This development has some manufacturers asking: Can we supply hospitals with personal protective equipment and ventilators in this time of COVID-19 response without risk of patent infringement?
In a post on the Fox Rothschild Coronavirus Response Resource Center, my partner Jeff Schwartz and I address this question. The short answer is, in most cases, no. However, there are actions that manufacturers can take to mitigate their risk, including:
- Seek a license from the patent holder. This could be done anonomously with help from counsel, from public officials or from others who have influence in the community who can help negotiate reasonable terms, and to avoid identifying the manufactuer to the patent holder in the initial call.
- Consider ways to design around the patent.
- Avoid creating emails and other communications that discuss the potential patent risk. Those documents could later be used against the company as evidence in patent infringement litigation.
For more details and the full article, click here.