IMPACT OF CoVID-19 ON 'IP REGIME'

[The Author, Deekhsha Sharma is 2nd year Ba.LLB(Hons.) student at The Law School, University of Jammu]

INTRODUCTION

The effects of the COVID-19 pandemic have been felt worldwide and across all business sectors. The pandemic is also leaving an impact on the protection of existing intellectual property rights (‘IPRs’) and on IPRs in the process of acquiring protection.

Whilst in normal circumstances IPR right holders are granted protection over their intellectual property (‘IP’) against third-party use, the pandemic has created an unprecedented situation whereby IPR holders may be forced, even temporarily, to allow third-parties to use their IPRs, example patents or designs, for the public interest.

Every year, April 26 is celebrated as World Intellectual Property Day. This year, it was not a day for celebration, but one for reflection and dedication. It provided us an opportunity to reflect upon the role of Intellectual Property (IP) in the ongoing health crises and dedicate IP to finding a solution.

SUSPENSION OF IP RIGHTS

Medical devices and medicinal products are generally protected via patents giving companies the legal right to inhibit third-party use. Patent protection allows creators to secure a quasi-monopoly, at least for several years, over their own unique inventions, after having invested time and money into the creation of the IP.

On the other hand, the COVID-19 crises created the need to produce essential equipment and medical supplies regardless of any possible backstop. Indeed, there is a growing need to be able to manufacture essential medical devices such as masks, ventilators and other personal protective equipment.

Several governments across the globe may need to resort to making use of legislation or implement new measures to ensure that they have an adequate supply of medical supplies necessary to combat COVID-19.

IMPACT OF COVID ON IP OFFICES

On the administrative front, currently the COVID-19 pandemic has affected the U.S. Patent and Trademark Office, World Intellectual Property Organization, European Patent Office, Intellectual Property Office of New Zealand (IPONZ), IP Australia, Canadian Intellectual Property Office (CIPO), Intellectual Property India, Brazilian Patent and Trademark Office (INPI), National Intellectual Property Office (NIPO) in Sri Lanka, and Directorate General of Intellectual Property (DGIP) in Indonesia, as well as U.S. Federal courts, including, the Supreme Court and Federal Circuit and all the IP Offices around the world.

MEASURES RESORTED TO BY IP OFFICES

The intellectual property offices have also taken some additional steps for patentees and trademark owners. Similar to the US Patent & Trademark Office (USPTO), the European Patent Office (EPO) has either provided extensions to oral hearings or provided a privilege to conduct them via video conference. The EPO and the EU Intellectual Property Office (EUIPO) also extended deadlines/time limits for responses to actions regarding patents and trademarks as a result of the impact of COVID-19. While the USPTO didn’t extend deadlines, but has waived off petition fees for circumstances in which the impact of the corona-virus outbreak restrained applicants or owners from timely replying to an Office section which results in abandoning of patent and trademark applications, termination of re-examinations or cancellation or expiration of registered marks.

INTELLECTUAL PROPERTY INDIA

• IPO will not accept any filings until India’s nationwide lockdown is lifted.
• All the deadlines will be extendable with petition.

Indian Patent and Trademark Offices are closed and no filings are possible at the Patent and Trademark Offices until the lockdown is lifted, and all the deadlines are automatically extended or extendable with petitions.

METHODS TO SPUR INNOVATION & TECHNOLOGY DURING PANDEMIC SITUATION

These are a few methods that can help in securing the rights of incumbents during this pandemic.

1) NEW AREAS FOR INNOVATION – TOWARDS THE DEVELOPMENT OF CRISIS-CRITICAL PRODUCTS

What in normal circumstances are considered typical IP activities are no more normal during times of pandemic. According to the analysis during the COVID-19 pandemic, a range of non-Crisis-Critical Product (CC-Product) manufacturers has entered Crisis-Critical Sectors (CC-Sectors), in which incumbent manufacturers have developed, produced and supplied Crisis-Critical Products (CC-Products) already before the pandemic. Those existing firms had insufficient production capacities to supply Crisis-Critical Products (CC-Products) in the huge quantities needed in a timely manner, leading to supply shortages for customers. Firms from non-Crisis-Critical Sectors (CC-Sectors), such as 3D printing, automotive, aerospace, home appliances, fashion and luxury goods, rushed into CC Sectors to help cope with the CC-Product supply shortages.

2) IP PLEDGING / COMPULSORY LICENSING

The CC-Products manufacturing companies can grant licenses and share CC-IP with other partners, including new entrants to speedily increase the manufacturing of CC-Products to fulfill the increased demand. For new entrants, this way is a way to avoid infringing existing IP owned by incumbents. For incumbents holding CC-IP, this is a way to facilitate the adoption of their technology during the pandemic, for helping the society as well as earning profit. For instance, they can share CC-IP during a pandemic using licenses and not charging the royalties for a limited time period and if companies want to continue using that IP beyond the pandemic, the licensing terms would prevent them to do so and the incumbents can charge royalties.

3) IP POOLS

CC- IP pools is an approach to avoid any delays in fighting a pandemic. CC-IP is made available to a restricted group of companies (e.g., a consortium) only or to all interested firms that want to use that IP. A formal approach for governments would be to facilitate the development of patent pools that have already been used in the pharmaceutical industry (e.g. Medicines patent pool).

CONCLUSION

There is an indispensable and foremost need to take care of Intellectual Property strategically during the ongoing Covid-19 situation in order to not lose any important asset related to Intellectual property which is a result of the stringent research & development work of many years and can be utilized in a Post-COVID world.

FREQUENTLY ASKED QUESTION

What is the need of Open COVID Pledge?

Ans. The need for accelerating open scientific research made several civil society organizations to create an Open COVID Pledge asking different industries to release their intellectual property rights during the pandemic to help find a cure for the disease. The pledge includes the release of an Open COVID License.

REFERENCES

1. ‘Image source’ < https://ipo.org/wp-content/uploads/2020/04/covid-19-1330px.jpg > accessed on 19 July 2020
2. ‘Measures which can be taken’ < https://www.thehindu.com/opinion/lead/needed-a-pandemic-patent-pool/article31475628.ece > accessed on 19 July 2020
3. ‘Steps taken by various countries’ < https://ttconsultants.com/blog/impacts-of-covid-19-on-ip-industry-methods-to-spur-innovation-during-pandemic/ > accessed on 19 July 2020
4. t rocedural considerations’ < https://www.lexology.com/library/detail.aspx?g=5a6c1e3b-1ada-4ca5-96d3-10b6989e3f59 > accessed on 19 July 2020t