Senator Sasse Proposes Legislation Extending the Patent Term for Inventions Intended to Treat COVID-19

On March 30, 2020, Senator Ben Sasse, R-Neb., introduced a bill that would create the Facilitating Innovation to Fight Coronavirus Act. The first part of the legislation would shield healthcare providers from federal, state, and local civil liability if they are testing or treating coronavirus patients in certain circumstances. The second part of the bill would extend patent protection for new and existing medical devices and drugs intended to treat COVID-19.

The added patent protection under the bill would only apply to eligible patents. An eligible patent is “a patent issued for a new or existing pharmaceutical, medical device, or other process, machine, manufacture, or composition of matter, or any new and useful improvement thereof used or intended for use in the treatment of the Coronavirus Disease.” The bill proposes that the term for new eligible patents “not begin until the date on which the national emergency declared by the President …terminates.” Moreover, the bill provides that the term for an eligible patent “shall extend for 10 years longer than it otherwise would under [the Patent Act].” Thus the bill would enhance patent protection for inventions covering technologies created to treat the coronavirus and inventions covering existing technologies adapted to treat the coronavirus.

The CARES Act, enacted on March 27, 2020, provides $140.4 billion in appropriations to the Department of Health and Human Services in relation to the coronavirus outbreak.  A substantial portion of these appropriations will go towards funding research and development efforts to counter the effects of the coronavirus. It is apparent from the various funding provisions of the CARES Act incentivizing public-private COVID-19 research collaborations and from Senator Sasse’s proposed bill extending COVID-19 patent terms that the federal government is determined to stimulate and support innovation in the fight against the coronavirus. This provides a great opportunity for parties with the capability to research and develop technologies related to COVID-19.

Gibbons will continue to monitor the coronavirus situation and related legislation and provide updates accordingly.

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