Impacts of COVID-19 on IP Industry & Methods to Spur Innovation during Pandemic

Today, the whole world is suffering from the pandemic and every continent, country, state, province and individual is going through an economic, financial, social breakdown that no one has ever thought of. This whole heart-breaking situation has arisen due to the spread of catastrophic and calamitous corona-virus disease.

The corona virus is spreading at a very rapid pace all over the world. As it spread through contacting an infected person, the government of all the countries is focusing on maintaining social distancing. To implement social distancing and to control the spread of the disease, many countries have enacted lockdown. This lockdown has a very disastrous impact on the economy of the countries as well as every sector including agriculture, business, stock markets, factories, refineries, power plants, IT sector and Intellectual Property.

Its spread has left businesses around the world counting the costs. It has led to big shifts in stock markets, where shares in companies are bought and sold, which can affect the value of pensions or individual savings accounts (ISAs). Recently industry body FICCI and tax consultancy Dhruvu advisors conducted an industry survey and gathered responses from about 380 companies across the sectors. The survey concluded that the businesses are grappling with “tremendous uncertainty” about their future. The reach of COVID-19 has been felt across all facets of life. The government has been taking all mandatory actions to prevent the spread of the disease. The government has banned national as well as international travelling. Primary schools have cancelled classes and colleges have turned to full-time online education.

Effects of COVID-19 on Intellectual Property

The COVID-19 has not spared even the world of intellectual property, but it has not brought it to a halt. The world of intellectual property is still moving but at a slower pace.

A prolonged pandemic crisis heightened by the Covid-19 may possibly push the intellectual property & legal services domain into a nosedive, just like other sectors & industries. However, the possibility of explosive growth in the intellectual property domain cannot be ignored once the Covid situation ends as a Post-Covid world will more likely push tech companies for going after the licensing of their existing IP portfolio to incentivize their financial reserves.

Companies holding big IP portfolios are being greatly affected by the pandemic and therefore trying to implement some obligatory measures to minimize the impact of a pandemic on their economy. Some companies have started re-shuffling their IP portfolio to cut down their cost by minimizing the cost spent of maintenance of patents, prosecution and searching. To minimize the cost further, IP holders are even thinking of abandoning the patents, dropping ideas of IP acquisitions. C-suite executives of big companies are also identifying the key innovation domains existing in the present era and restricting themselves to continue working in those specific areas only. It is also expected that the pandemic will lead to a drop in PCT filings as IP holders will prefer not to waste money by patenting their invention in every nation, instead getting patents in some selected jurisdictions on the basis of the likely probability of infringers in a nation. This will lead to selective filling of patents in some jurisdictions only.

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. 

Foreign patent and trademark offices throughout the world are taking steps to address the impact of lockdown on IP practitioners and their own working and operations. The measures have been taken to provide relief to the whole IP society. The measures include extending deadlines related to the prosecution of patents, copyrights, and trademarks.

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.

Steps Taken By Different IP Offices To Overcome The Effects Of Pandemic

The United States Patent and Trademark Office (USPTO)

• USPTO has waived the petition fee when the patent applicant or patent owner files a reply with a petition under 37 CFR 1.137(a) in a situation when patent applicants or patent owners were unable to timely reply to an Office communication due to the outbreak of the corona-virus, which led to abandoning of the application or termination of the re-examination prosecution.
• Has waived the need for presenting an original handwritten signature personally signed in a permanent dark ink or its equivalent.
• Implemented corona-virus Aid, Relief, and Economic Security Act (CARES Act), postponing certain deadlines occurring between March 27, 2020, and April 30, 2020, by 30 days from the initial date on which those patent-related documents or fees were due, “provided that the filing is accompanied by a statement that the delay in filing or payment was due to the COVID-19 outbreak.”

World Intellectual Property Organization (WIPO)

• Has suspended the transmittal of PCT documents (e.g., PCT Forms, letters) on paper.
• The International Bureau will be transmitting documents only via e-mail until further notice.

European Patent Office (EPO)

• Extended periods expire on or after March 15, 2020, for all parties and their representatives to April 17, 2020.

Canadian Intellectual Property Office (CIPO)

• CIPO announced that it will remain open and operate during the crisis, and encourage applicants and representatives to use its online services for all transactions with CIPO. 
• CIPO extended all deadlines falling between March 16 and March 31 to May 1, 2020.
• Hearings of the Patent Appeal Board and the Trademarks Opposition Board will take place by telephone and/or teleconference.

IP Australia

• Australian patent office will allow patentees and owners to request an extension of the deadline if the COVID-19 pandemic has affected their ability to respond by a deadline.

Intellectual Property India

• IPO will not accept any filings until India’s nationwide lockdown is lifted.
• All the deadlines will be extendable with petitions.
• Cases with deadlines on or before April 14, 2020, have been extended to April 15, 2020.

However, as the Government of India announced a nationwide lockdown that has been extended until May 3, as a result, Indian Patent and Trademark Offices have been 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.

Global Research Challenges & Roadmap for COVID-19 Research

From an innovation and IP perspective at present, there are particularly five technology-related challenges that emerged from observations during the recent weeks of the pandemic, some relate to novel technologies highlighted in the WHO’s Coordinated Global Research Roadmap for COVID-19 while others have emerged from operations needs in frontline healthcare.

• The first and foremost challenge is to find a cure for acute respiratory pneumonia caused by COVID-19. The cure for the disease has initiated R&D efforts at large-scale.
• Second, the pandemic has created a sudden and massive demand for the development and manufacturing of diagnostic testing kits with high accuracy and manufacturing at a large scale.
• Third, the pandemic caused a sudden need to treat a large number of patients in hospitals requiring an extraordinarily large ICU capacity and increased demand for medical devices, particularly ventilators.
• Fourth, the pandemic has called for a need for digital innovation, including digitally monitoring and understanding the spread and development of the virus across populations, including tracking of cases and spreaders.
• Fifth, the COVID-19 pandemic has caused an exceptionally high demand for skilled medical staff, doctors and nurses, particularly with ICU experience, such as anaesthetists and critical care nurses, all of whom need to be equipped with PPE (personal protective equipment), in this pandemic particularly protective clothing, face shields, goggles, gloves to protect health care staff from infection.

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.

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.

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 fulfil 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.

IP Pools

CC- IP pools is an approach to avoid any delays in fighting a pandemic. CC-IP are 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

As the virus is spreading rapidly all over the world, it is expected that a greater number of national IP offices will introduce measures to overcome the impact of the virus and may provide relief to the IP holding companies and practitioners. For now, professionals, IP owners/holders and practitioners are suggested to manage their IP portfolio diligently to identify non-performing assets. IP holders should also design some clever strategies which will help them to adapt to the post-pandemic environment. To address IP infringement concerns related to crisis critical products during a pandemic, compulsory licensing, IP pledges, and IP pooling is becoming beneficial. Also, it is important to capture and protect any essential IP that is generated from the mass manufacturing of Crisis Critical Products.

With that being said, 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.