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IP Protection in The Age of A Global Pandemic - The Impact of COVID-19 on Intellectual Property Rights

07

MAY

2020

COVID-19, the biggest global pandemic after the Spanish Flu of 1918. As the number of persons infected with the virus seems to be increasing with every passing day and many lives have been lost to this deadly disease, this pandemic seems to have had a far greater impact on the world population on multifarious levels including trade and commerce. As world over the governments have imposed lockdown orders where members of a country are forced to pace the floor of their houses like never before, conduct work and businesses from these very confines, it is but a given that the world order is changing or as many have referred to this as a ‘new normal’. In this new normal there are not many fields that remain unaffected and that in turn is also the case of our rights and obligations. This article therefore deals with the impact the Covid-19 has had on the Intellectual Property Rights registered or commanded by a ‘person’ ranging from patents for drugs and equipment used during the pandemic to issues relating to spurious goods being sold during this time as well as the race to trademark ‘Corona’ as a mark for a business to use. In all this is also an important query, whether existing intellectual property rights require a particular or different approach during these Covid Times.

In an era where technology is at forefront intellectual property rights have been a game changer for many a company. In this race to make an IP enriched world, a refreshing change was in these extraneous times, when significantly well known companies took the Open COVID Pledge. Major players in the field of technology such as Amazon, Facebook, Hewlett Packard, IBM, Microsoft and Sandia National Laboratories to name a few as well as several prominent Universities like Stanford took this pledge and licensed their intellectual property for use in the fight against Covid-19. The supporters of this pledge have adopted pledges from relinquishing their intellectual property rights to promising not to enforce patents belonging to them to allowing the free use of their intellectual property all to combat the COVID-19 pandemic. This pledge does provide the license terms but has provided validity of the license from 1st December 2019 (backdated) upto one year after the World Health Organization declares that the pandemic has ceased.

Covid-Compulsory Licensing and the Bolar Exemption

Patents have become the spotlight Intellectual Property right as the control of the Pandemic depends on a curative or vaccine product. Wide discussions on various patents that might possibly be the cure or a process of finding a cure for the COVID have tempered on the requirement of allowing compulsory licenses as the need of the hour. In fact, when reports indicated Remdesivir to be a better response drug to Covid-19, many Indian pharmaceutical companies started looking into preparing to develop the generic version of this drug. The patent for the said drug belongs to a US Based Company, Gilead Sciences until 2035. However the Indian Pharmaceutical generic drug developers companies have begun to conduct research and development with the said drug in the hope that Gilead would grant a license for the same as it had for treating Hepatitis C in the year 2014 this being done under the Bolar exemption provided under Indian Patent Law. This provision under patent law allows manufacturer of generic drugs to conduct research and develop the drug, which can be based out of the original patented drug, however the launch of the drug cannot be done in the market so long as the patent granted continues to exist. Recently the Cancer Patients Aid Association (CPAA) India wrote a letter to the Prime Minister’s Office, the Commerce Minister and the Union Health Secretary, among others, urging the Government of India to revoke the patent granted to Gilead on the Remdesivir compound in public interest so that more manufacturers can prepare the mentioned drug. It is to be noted that several countries have passed legislations enabling Compulsory Licensing in view of the current pandemic. These include Canada, Israel, Germany, France, Chile and Ecuador. While it is important and in fact imperative to liberalise and relax the process of compulsory license during this rather crucial time, it is also important to obtain the complete know how about the invention from the inventors and thereby keep them informed of the use of their inventions. Keeping aside the suo moto right of granting the compulsory license, it would be completely inappropriate to raise claims of monopoly in the present situation. In any case, in the coming years we are sure to see a robust filing of new patents for vaccines, curative drugs and other such formulations in light of the current pandemic.

Registration and licensing of trademarks:

The records of the Trademark Registry over the years have exhibited the trend of public trying to register names that are in vogue or in focus. Names on trends are registered on proposed to be used basis. In the present COVID situation many are trying to register various innovative formatives of the term COVID, Coronavirus for their products and services including disinfectant preparations and it is imminent for companies especially in the healthcare and pharmaceutical sector to have their formative marks registered. However, we would have to wait to see the registrability of each term, and the discretion of the Registrar in this regard.

It has been a general practice that the registered proprietors of trademarks enter into license agreements with their distributors or arrangers wherein the conditions of the manner to use their mark, products on which the marks should be used are listed. However, during this unprecedented pandemic situation a diversion from the licensed user conditions can occur as there may be challenges in following the agreed pattern of use or permissions on certain manner of use might not be forthcoming. This kind of situation especially when it comes to products such as sanitizers, disinfectants etc which has become essentials should be followed in order to see there are no misuse of the marks or spurious products let into the market. That said it is time that we consider such situations while contemplating future license agreements.

Brand value:

The economic downturn will also see major restructuring and acquisitions or mergers coming to fore to address this, and in such a scenario the brand value of a sold or bought company will play a crucial role in the negotiation of valuation price for such companies.

Another significant change is the fact that the general populace has during the lockdown due to shortage of supplies deviated from the brand loyalty to product availability, meaning demand of unbranded products or less known generic products is seeing a steady growth. This has created an opportunity for the emerging or lesser known brand owners to be known to the public.

Yet another point to be considered is the fact that several companies under their major brands have begun to manufacture and source products and render services which are not in their usual course of business. Several cosmetic companies have begun to manufacture hand sanitizers and liquid soap. Another classic example is how delivery aggregators who operate to source food from restaurants have now begun to deliver groceries and essential supplies due to the growing need and demand of the public and here these manufacturers or operators are still cashing on their brand value for seeing that they increase the source of supplies to their existing customer base and thereby continue their connect it the market. This may give rise to several new trademark filings in future to cover such products and services.

Passing off & infringements:

In this changing scenario of brand growth or diversification there is another aspect of dubious or spurious products entering the market. Due to the Covid situation the resources are diverted in fighting the battle therefore the checks and balances that would usually operate to usurp or capture such products would not be activated. Therefore, there is a possibility that products of known brands can enter the market whereby fly by night operators would supply such products that are spurious. There is also a high possibility that unknown players would try and cash in on known brands and produce products with similar product names thereby triggering off passing off or infringement of the known brands. This may be detrimental to the public, particularly when concerned products are the health and hygiene products such as disinfectants, PPEs which are essential for our well being as well as the Covid warriors. Therefore companies require to keep a close watch on their product supplies and in the event of any inputs of passing off and infringement to take all corrective actions from notice to even litigation to cease such activity immediately.

Circulation of copyrighted contents:

Another major change that has occurred is the offering of educational products and resources online. Many educational institutions have begun to engage in remote teaching methods and provide online lectures and tutorials. Moreover, a lot of supplementary materials for these courses are also circulated, and several libraries have begun to provide free access to their resources. However, such content should be accessed and used within the provisions of fair use and copying and misappropriating such content would still amount to infringement under the relevant provisions of Copyright Law.

It is in this time, as various webpages are circulated widely through various social platforms, it is important for the copyright owners to be highly vigilant of possible infringements and misuse of their copyright materials and corrective action be taken against any use which might not fall within the exempted uses.

Effect of COVID-19 on IP Offices:

As the whole world has gone into lockdown, the IP offices around the world have closed their regular operations. Although most of these offices permit online filings, deadlines on all IP matters have been extended in several jurisdictions such as Canada, EU, Korea and India. However, in some countries such as Japan, the deadlines remain in place and parties who are unable to meet the prescribed deadlines, are allowed to submit a declaration explaining the circumstances and the JPO is likely to grant an extension.

Measures taken by WIPO:

The World Intellectual Property Organization has taken several measures as a reaction to Covid-19. WIPO has taken into cognizance the various challenges in innovation faced due to the current situation and has put forth the following measures:

• It has established a policy tracker to provide information on measures undertaken by IP offices such as the extension of deadlines and the establishment of grace periods for the payment of fees. This policy tracker would also provide information on any policy measures covering exceptions, limitations or compulsory licenses.

• A database, PATENTSCOPE, has been provided and it consists of over 80 million technology disclosures, multi-lingual search capabilities, an automatic translation system, and a specially developed COVID-19 search and it also contains a retrieval facility which enhances access to technological information disclosed in published patents with regard to inventions relating to the detection, prevention or treatment of COVID-19.

• A partnership has been developed with scientific, medical and technical publishers, Access to Research and Development for Innovation (ARDI), providing free online access to major scientific and technical journals to local not-for-profit institutions in least developed countries and access at a modest cost to institutions in middle income developing countries.

• Around 900 Technology and Innovation Support Centers have been established around the world to provide access to patent and scientific data and publications and ancillary facilities for researchers in least developed, developing and transition economies.

COVID-19 has led to various developments and changes being made in the IP Regimes around the world. As far as finding efficient diagnostic methods and tools, cures and vaccines are concerned, the Open COVID pledge proves to be a promising solution with the welfare of the general public and an improvement in the healthcare systems around the world as the primary concern during this time.

About the Firm

Kochhar & Co.
Address Suite 305, 3rd Floor, Delta Wing, Raheja Towers, #177, Anna Salai, Chennai – 600 002
Tel 91-44-4040 5222
Fax 91-44-2860 7588
Email savitha@chennai.kochhar.com
Link www.kochhar.com

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