Intellectual Property Law

New Matter SUMMER 2020, Volume 45, Number 2

Letter from the Editor-in-Chief

Thomas A. Ward

CommScope

Welcome to the summer edition of New Matter for 2020. The cover art for this issue is one of the 3M N95 masks which was chosen to highlight the current COVID-19 issues as well as the patent and trademark issues that have arisen as a result of the COVID-19 pandemic. A N95 mask or N95 respirator is a particulate-filtering facepiece that meets the U.S. National Institute for Occupational Safety and Health (NIOSH) N95 classification, meaning that it filters at least 95% of airborne particles. N95 respirators were originally designed for industrial use in sectors such as mining, construction and painting, but recently have been used to prevent COVID-19 virus transmission.

A number of patent and trademark issues have arisen relating to the 3M N95 mask. For example, in early April, Kentucky governor Andy Beshear stated he wanted 3M to release its patent for the N95 respirator. Beshear said "procurement is incredibly difficult, as is the manufacture because it’s under patent. I’d like to see the people with that patent, which is 3M, provide that to the nation under a license for this period of time." Also in early April, 3M filed a lawsuit alleging trademark infringement claims against N95 respirator distributor Performance Supply, LLC, in the Southern District of New York. Although trademark claims were made, central to 3M’s suit is the company’s desire to eliminate what it calls a false and deceptive price-gouging scheme being perpetrated by entities operating outside of 3M’s authorized supply chain and taking advantage of increased respirator demand caused by the COVID-19 crisis. These actions show that intellectual property rights are still at the forefront during the COVID-19 crisis. We invite readers to read New Matter to keep abreast of the numerous changes in IP law as well as news items like this that effect IP enforcement.

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