COVID-19 AND ITS IMPACT ON THE IP INDUSTRY

Abstract

The novel coronavirus or universally known as the COVID-19 was declared as a pandemic by the World Health Organisation (WHO) on 11th March 2020. It has had a huge impact on the whole world and will continue to do so until a solution for it is developed. This article aims to evaluate the impact COVID-19 has had on intellectual property and steps taken by the Indian government as well as various other governments and organisations dealing with intellectual property in order to ease the situation. Further the article talks about how IP rights have been violated in times like these and what can be done by IP holders or companies to help ease the current crisis.

Introduction

The COVID-19 pandemic has affected all aspects of life and has not only taken a huge toll on the global economy but also on the people. If in 2019, someone told you that all schools, colleges would be shut down, travelling would be banned in most parts of the world and each one of us would be confined to our houses in a state of complete lockdown, you wouldn’t believe it but such has been the impact of COVID-19. Nothing has been an exception to this phenomenon, not even the world of intellectual property.

However, in order to ease the impact of the situation on the Intellectual Property Rights sector in India, deadlines have been extended; filing of appeal has been adjourned till normalcy is restored and on-going cases are either adjourned or are being heard through the means video conferencing.[1] [2]

In these unprecedented times, when the world is under an economic, health and business crisis all at the same time, the governments around the world have diverted funds towards the procurement of safety gear such as Personal Protection Equipment (PPE’s), medical equipment, medicines and diagnostic kits. In addition to all this, research has been the top priority as developing a vaccine is of utmost importance. In the era of globalisation, where the economy is guided by research and development, IP becomes an essential part of the process. The main aim of IP is to create such a framework which is incentive driven in order to encourage innovation and creativity as well as protect the originality of the product by issuing them patents, trademarks, geographical indicators, industrial designs or copyrights.[3] As research projects and developments in all fields except pharma and healthcare are either temporarily suspended or have been slowed down, intellectual property has been severely impacted since research cannot be concluded effectively through virtual means. Thus, leading to fewer innovations and models.

On the contrary, the world’s leading diagnostic kit maker “Roche”, a Swiss multinational has been accused of retaining the chemical formulae for a reagent which is used in the polymerase chain reaction-based test for COVID-19. The company’s inability to meet such an enormous demand in such a short span of time is one of the reasons for delayed testing. The company’s decision to withhold the formulae restricts local firms from mass producing it and thus limiting its supply. A similar kind of situation arose in Italy when a local firm 3D printed a particular component which is an essential part of a ventilator for just $1 whereas the original component costs $11,000. In the first situation, the Swiss multinational’s decision is completed justified in the world of law, as it is the company’s legal right to not disclose the protected formulae. On the other hand, the company which manufactured the original component of the ventilator, might be facing the impact of its IPR being violated.[4]

Coincidentally, similar situation has arisen in India wherein two drugs, Favipriavir and Remdesivir which are patent protected in India are set to go under clinical trial in order to comprehend and understand if they can be used in the potential vaccine for COVID-19.

The IP community world over and many organisations including World Intellectual Property Organisation (WIPO), World Trade Centre (WTO) and World Health Organisation (WHO) have been addressed in an open letter by Carlos Correa, Executive Director of South Centre an international think tank. The letter urges these organisations to “support those WTO member countries which invoke the security exception contained in Article73(b) of the TRIPS Agreement[5] to suspend the enforcement of any intellectual property right (including patents, designs and trade secrets) that may pose an obstacle to the procurement or local manufacturing of the products and devices necessary to protect their populations. He goes on to add that, take actions it considers necessary for the protection of its essential security interests in the wake of the COVID-19 threat. The use of this exception will be fully justified to procure medical products and devices or to use the technologies to manufacture them as necessary to address the current health emergency.”

Suggestions

The following suggestions may be considered by the companies/ IP holders:

  1. The companies/ IP holders in order to serve the society; keep themselves in the good books of government authorities and to safeguard its own interests, they themselves should approach the appropriate government authority and offer their patents or research results for licensing to local manufacturers, so as to manufacture in bulk. In this way, the companies will have room for negotiating their licensing fees and other terms & conditions. Similarly, countries like Germany, Chile and Israel have amended their patent laws and issued orders to facilitate compulsory licenses for any patented product in order to use them for the purpose of COVID-19.
  2. It is advisable that the companies not file any legal suits in the time of such a crisis as it would not only create negative publicity for the company but it would also prompt the government authorities to invoke security exception clause and make the patented technology or products available to all, with the company not only losing on its IP rights but on its monetary income as well.
  3. Even if companies aren’t letting go of their patents, then can allow other organizations to research and develop using their patented products and gain some commission benefit for that. This will allow them to have their patent while also help the community by helping build a potential cure for COVID-19 by letting them make use of their patented products which might be useful.
  4. But at the most priority should be protecting the lives of people, hence no technology or research should be withheld in the time of such a crisis.

Conclusion

Although COVID has had a great impact, IP somehow seems to overcome the shortcomings slowly and steadily. They have found alternatives to continue the work flow by providing options such as video conferencing for hearing cases, extension of deadlines and waiving off the requirement of filing of physical evidence in the view of this pandemic. They have taken necessary measures to ensure the safety of everyone while clinching to the idea of innovation.

References

  1. Sana Singh, ‘India on lockdown due the COVID-19 outbreak- How will IPO function?’ (Singhania &Partners Pvt Ltd, 4 April 2020), https://singhania.in/intellectual-property-offices-notification-scheduled-hearings-covid19lockdown-2/, accessed 2 May 2020.
  2. http://ipindia.nic.in/writereaddata/Portal/Images/pdf/Public-Notice_adjounrment.pdf, accessed 2 May 2020.
  3. Francis Gurry, ‘Some Consideration on Intellectual Property Innovation, Access and COVID-19’, (World Intellectual Property Organisation, 24 April 2020), https://www.wipo.int/about-wipo/en/dgo/news/2020/news_0025.html, accessed 2 May 2020.
  4. Joe C Mathew, ‘Coronavirus: Will Intellectual Property be a hurdle in India’s fight against COVID-19?’, business today (New Delhi, 5 April 2020), https://www.businesstoday.in/latest/trends/coronavirus-will-intellectual-property-be-a-hurdle-in-indias-fight-against-covid-19/story/400200.html.
  5. Trade Related Aspects of Intellectual Property Rights, art. 73(b), Jan. 1, 1995, https://www.wto.org/english/docs_e/legal_e/27-trips_09_e.htm.

[1] Sana Singh, ‘India on lockdown due the COVID-19 outbreak- How will IPO function?’ (Singhania &Partners Pvt Ltd, 4 April 2020), https://singhania.in/intellectual-property-offices-notification-scheduled-hearings-covid19lockdown-2/, accessed 2 May 2020.

[2] http://ipindia.nic.in/writereaddata/Portal/Images/pdf/Public-Notice_adjounrment.pdf, accessed 2 May 2020.

[3] Francis Gurry, ‘Some Consideration on Intellectual Property Innovation, Access and COVID-19’, (World Intellectual Property Organisation, 24 April 2020), https://www.wipo.int/about-wipo/en/dgo/news/2020/news_0025.html, accessed 2 May 2020.

[4]Joe C Mathew, ‘Coronavirus: Will Intellectual Property be a hurdle in India’s fight against COVID-19?’, business today (New Delhi, 5 April 2020), https://www.businesstoday.in/latest/trends/coronavirus-will-intellectual-property-be-a-hurdle-in-indias-fight-against-covid-19/story/400200.html.

[5] Trade Related Aspects of Intellectual Property Rights, art. 73(b), Jan. 1, 1995, https://www.wto.org/english/docs_e/legal_e/27-trips_09_e.htm.