Today, the whole world is suffering from the pandemic and every continent, country, state, province and individual is going through an economical, 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 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 traveling. Primary schools have canceled classes and colleges have turned to full-time online education.
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 an 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 portfolio 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 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 get patents in some selected jurisdictions on the basis of 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.
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.
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 other have emerged from operations needs in frontline healthcare.
These are a few methods that can help in securing the rights of incumbents during this pandemic.
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.
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.
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).
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 in 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.