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In Law360, IP Litigators Examine Intersection of PREP Act Protection and Patent Infringement

Practices: Intellectual Property, Intellectual Property Litigation, Patent Litigation, Patent Strategy, Administrative Litigation, Litigation

In a Law360 article, IP litigation partner Matt Rizzolo, associate Keyna Chow and law clerk Julian Sarabia analyzed the question of whether immunity under the Public Readiness and Emergency Preparedness (PREP) Act extends to protect manufacturers against claims of patent infringement.

The authors explain that the question of whether the PREP Act immunity applies to patent infringement claims was not addressed until recently, in a June 2022 opinion from the District Court of Maine in Copan Italia S.P.A., v. Puritan Medical Products Co.

The district court denied a motion to dismiss by Puritan who was a manufacturer of flocked swabs—but did not directly rule on the issue of whether the PREP Act immunity could extend to patent infringement claims. The authors expect constitutional and other novel issues involving the PREP Act may be addressed by courts in the coming years, as more patent infringement cases are brought concerning products used in fighting the COVID-19 pandemic.

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