Florida's COVID-19 Liability Shield Law

On March 29, 2021, Florida passed a new law which protects individuals, businesses, educational institutions, government entities, and religious institutions which have made good faith efforts to follow COVID-19 guidelines against COVID-19-related injury and death lawsuits.

Persons who file suit will need to provide a physician’s affidavit of merit which links their injury to the businesses’ acts or omissions with a “reasonable degree of medical certainty” and also prove that the business did not make a good faith effort to comply with established guidelines. Even if plaintiffs are able to meet these requirements, businesses will still be shielded from liability absent a showing of gross negligence which must be shown by clear and convincing evidence in order to prevail.

The new law also contains separate protections for health care providers requiring plaintiffs to prove that the provider was grossly negligent or engaged in intentional misconduct by the greater weight of the evidence. Providers will be able to raise an affirmative defense to such claims if they complied with government-issued health standards specifically related COVID-19.

Notably the law only shields entities from liability for personal injury claims related to COVID-19. It does not shield entities from other claims that may be related to COVID-19 such as allegations of wrongful termination, discrimination, or violation of the Americans with Disabilities Act.

Covered entities should take steps to document their specific and actual compliance with federal, state, and local COVID-19 prevention guidelines in anticipation of challenges to same.

The law applies retroactively for all claims filed after March 29, 2021 and imposes a one-year statute of limitations.

Open Source Licensing

In the U.S., copyright owners have exclusive rights to their works including the right to use, copy, modify, and distribute the copyrighted work. The Copyright Act extends these rights and protections to software source code and software creators may choose to then license their rights to users of the software. In choosing to license their software, creators retain their rights in the work but grant permission to others to use the work under certain terms and conditions.

Under traditional proprietary licenses, software creators can limit how others use their copyrighted software by means of end user license agreements that prohibit copying, modifying, or redistributing the software. The copyright to the software is further protected by only providing the user with the object code for the software which cannot be easily read or modified.

Alternatively, software owners can choose to make the source code available to users and allow them to freely use, copy, modify, and redistribute the software under open-source licenses. An open-source license thus gives the user both the ability and legal right to modify the software. However, software provided under an open-source license is still subject to copyright protection and failure to comply with the license terms can be grounds for legal claims of copyright infringement as well as breach of contract.

There are hundreds of open-source licenses and variants which generally fall under two broad categories: restrictive or permissive. Under both types of licenses, users are allowed to use, modify, and redistribute software but the licenses differ in how subsequent modifications, derivatives, or new programs are licensed. Under a restrictive license, also known as copyleft or reciprocal license, the derivative work must be licensed under the same open-source license as the original software meaning it must be offered to others to use, modify, and redistribute under the same terms. Conversely a permissive license allows derivative works to be licensed under a proprietary license.

Some of the most popular open-source licenses include:

MIT License https://opensource.org/licenses/MIT

  • Permissive
  • License to use, copy, modify, and distribute software
  • May distribute under different licenses and without source code
  • Must include copyright notice and license agreement

GNU General Public License (GPL) v3.0 https://www.gnu.org/licenses/gpl-3.0.html

  • Restrictive
  • License to use, copy, modify, and distribute software
  • Commercial, private, and patent use
  • Must disclose source and include license and copyright notice
  • Must make complete source code of licensed works and modifications available
  • Must distribute under same open-source license

Apache License v.2.0 https://www.apache.org/licenses/LICENSE-2.0

  • Permissive
  • License to use, copy, modify, and distribute software
  • Commercial, private, and patent use
  • May distribute under different licenses and without source code
  • Must include license and copyright notice

Creative Commons (CC) 3.0 https://creativecommons.org/licenses/by-nc/3.0/legalcode

  • Restrictive
  • Must attribute author as creator
  • Non-commercial use
  • License to copy and distribute
  • No derivatives

Patents Outside the United States

A United States patent is only valid within the United States and will not neccesarily allow you to sue infringers in another country. Most countries have their own patent system, and if you plan on operating internationally you need to consider international protection. While there are many different patent systems, the requirements are generally the same: your invention must be new, useful, and non-obvious. Some jurisdictions may even require you to seek patent protection prior to publicly disclosing an invention- which differs from United States law, wherein you have a period of time from public disclosure to apply.

One of the easiest ways to begin pursing international patent protection is through a Patent Cooperation Treaty (PCT) filing. The PCT allows you to file an international application with the World Intellectual Property Organization (WIPO). From WIPO, your application can be submitted to any of the member nations, which includes most major countries around the globe. This process is referred to as entering the national stage, and once you enter the national stage you must follow that nation’s requirements to obtain a national patent.

Unfortunately, the PCT application does not lead to an “international patent.” However, the PCT application serves as a global provisional application, and you have over two years from filing the PCT application to enter the national stage in as many countries as you wish to obtain protection in. A PCT application is often more efficient than trying to coordinate filing in multiple countries.

Prior Art and Patentability Searches

A basic requirement to obtain a patent on an invention is that it is new and non-obvious. These requirements involve looking at the prior art. Prior art is broadly described as everything that exists and is publicly available as of the date the patent application is filed.

Prior art may consist of documents, such as published patents or applications, research papers, journal articles, or conference presentations. However, documentary prior art does not have to be formal. An Internet posing or YouTube video could constitute prior art. Prior art also captures products offered for sale to the public.

Understanding what the prior art is helps evaluate whether your invention is likely to receive patent protection. This review is accomplished through a prior art search. You can also contact a patent professional who can perform a detailed search of the prior art and give you an opinion on patentability prior to investing the time and effort into pursuing patent protection.

Patent Profitability

A key choice in your intellectual property strategy is how you will use your intellectual property to increase the value of your business. If you choose to pursue patent protection, there are several methods to drive value with your patent(s).

If you plan to make and sell the invention yourself, then your strategy will likely include enforcement. Patents provide an exclusive right (for a limited period of time) to make, use, import, and sell the patented invention.  This means that you can sue other businesses who put infringing products on the market. This method protects a value stream from sales but carries the costs of identifying infringers and the cost of lawsuits to enforce your rights.

You may also choose to pursue a licensing model, where you grant others the right to use your patent in exchange for a royalty. A strong set of licensing arrangements can lead to greater revenue streams, but licenses should be carefully crafted to protect your rights and ensure you obtain a fair deal.

In some cases, a patent can be used as leverage to drive investment or acquisition of your business. Investors are likely to see a patent as a valuable business asset and may be encouraged to invest additional capital, allowing you to scale. Larger companies may also find your patent valuable enough to buy your business to expand their own operations.

A strong intellectual property strategy will optimize multiple uses of your patent to build value for your business. You should not just consider whether you can patent your invention, but also what you will do with a patent once it issues, to ensure that the costs and drawbacks associated with seeking patent protection are justified by the potential economic upside.