Intellectual Property in the COVID-19 era and beyond

May 13, 2020by S.L.Soujanya

The ongoing global pandemic and its resultant repercussions on economy is unprecedented. Strong economies have strong Intellectual Property (IP) environment. Thus, when the economy suffers, so do its IP environment. The economic implication is across all levels and all sectors of businesses. Hence it goes without saying that innovation is suffering.

Current IP scenario as a resultant of COVID-19

It is the first time in the history that “The World IP Day-2020” was celebrated under the blanket of worldwide lockdown. WIPO’s message was clear: “the choices we make today will shape tomorrow”. This statement holds good in the ongoing situation where the importance of innovation is being highlighted.

The impact of COVID-19 on IP

  • The economists and industry experts have for some time estimated a strong negative impact on the economy due to the pandemic.
  • The impact of economic slowdown and collapse is being felt worldwide. Patent offices, law firms and research centers have not been left behind either. The culture of working remotely is the new norm. But this may not be feasible for all kinds of works such as: visiting a laboratory, researches involving close proximity with humans, clandestine jobs, jobs involving maintenance of law and order etc.
  • Economies are limping and funding for innovation and to subsequently obtain IP protection is near paralysed.
  • Single point focus: Currently, one-point agenda for research is “developing a cure or vaccine for COVID-19”. All the researchers and research-based organizations are single handedly focused on COVID-19’s cure, thus affecting all other research and development process. Other ongoing researches have either slowed down or have been put on halt.
  • Given the uncertainty of the situation, the IP offices across the globe have initiated remote working arrangements. Physical filings, hearing with the examiners, Appellate Board trials etc. have all been suspended (till further notice) or have moved to an online platform.
  • Court closures have led to remote hearings or delay in hearings or delay in pronouncement of judgements.
  • On the other hand, there has been a significance increase in filing the patent law suits, where the patent owners are rushing to file their cases given the uncertainty.
  • These lawsuits would ensure the party suffering to obtain their compensation to give them a monetary cushion.

Coping with the turbulence: The patent office way

The patent offices across the globe have come up with respective methods to mitigate the impact out of the pandemic.

  • Almost all the patent offices from Indian Patent Office (IPO) to United States Patent and Trademarks Office (USPTO) to the European Patent Office (EPO) have extended the deadlines for filings of Patent and trademark applications. The US copyright office has also extended the deadlines for pending matters.
  • Some offices have temporarily done away with the option of cash payments (Trinidad and Tobago).
  • USPTO has done away with the requirement to physically sign in few cases given the situation.
  • The USPTO has also released a special form to assist with making a statement of delay due to COVID-19. But has also clarified that fraudulent claims would lead to invalidation of resultant Patent or Trademark.
  • Also, a COVID-19 prioritized examination pilot program has been launched by the USPTO. This program is to grant requests for examining the applications of small or micro entity status applicants without attracting any fee usually charged for other prioritized applications. Dispositions of the applications within six months upon prompt response from applicants is quoted. [https://www.uspto.gov/about-us/news-updates/uspto-announces-covid-19-prioritized-examination-pilot-program-small-and]
  • A complete lockdown in India has resulted in relaxation of deadlines for filings and are subjected to be automatically extended. But, the e-filing facilities stand functional.
  • The hearing in High courts have been suspended. Only matters of urgent public importance will be catered through video conferencing mode.
  • Interim orders passed by the Delhi High Court and subordinate courts will continue to operate till May 15.

IP after Pandemic:  a new norm?

There are plethora of questions arising with the innovators, IP professionals, Patent Offices, related businesses and other players in this field about finding a survival strategy during and after the pandemic. It may be essential to focus on the following points:

  • Communication stands out as the most important tool between the players in IP field like stake holders, businesses, law firms etc.
  • Understanding and focusing on client requirements given the uncertainty.
  • Educating oneself about prospective areas of patent prosecution and see what are the upcoming inventions during this time. For example: The shift is now on ventilators, masks with an anti-viral coating, hands free door openers, anti-microbial cleansers, testing kits etc.
  • Focusing on IP budget by shifting from those jurisdictions where filings and prosecution may not be significant to a more economically viable and active jurisdiction.

Conclusion:

Recovery from the loss due to pandemic on socio-economic front is going to be a mammoth task. Intellectual property and its awareness are, and will need to continue to give its healing touch to the world. Counterfeit goods, medicines etc. need to curbed especially in the era of panic buying. The shift is now from Intellectual Property Rights (IPR) as exclusive rights to IPR as a collaborative right between the industry and the inventor. It is important that the countries worldwide use IP as a tool to combat the pandemic rather than using it to compete with each other.

References:

https://www.ipwatchdog.com/2020/03/19/global-ip-offices-respond-covid-19/id=119961/

https://www.ipwatchdog.com/2020/05/08/barks-bites-friday-may-8-cafc-denies-ptab-appeals-arthrex-uspto-launches-covid-19-priority-pilot-scotus-hears-booking-com-arguments/id=121503/

https://www.natlawreview.com/article/sharing-ip-rights-fight-against-covid-19

https://news.berkeley.edu/2020/04/10/covid-19-economic-impact-human-solutions/

https://bakerbotts.com/insights/publications/2020/may/global-overview-of-ip-entity-responses-to-covid-19-crisis

https://iccwbo.org/media-wall/news-speeches/how-intellectual-property-can-strengthen-our-response-to-climate-change-and-covid-19/

 

S.L.Soujanya

S.L.Soujanya

Ms. S.L. Soujanya is a registered Patent agent with an academic background in Pharmaceutical sciences. She holds a Bachelor’s degree in Pharmacy from the Osmania University, Hyderabad and holds a Post Graduate Diploma in Intellectual Property Rights Law from NLSIU, Bangalore.

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Telangana, India.
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