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COVID-19 & IP Rights 03-03-2021

The New Year 2021 has brought us hope and we all look forward to having a prosperous and promising year ahead and to be able to overcome the ill effects that the pandemic has imposed.

In the latter half of 2019, the outbreak of a cluster of pneumonia cases was reported at the Wuhan market, at the Hubei Province in China which was caused due to a kind of coronavirus. From here starts the saga of the pandemic that has presently gripped the world in fear and uncertainty. On the 1st of January 2020, the World Health Organization (WHO), brought to being its Incident Management Support Team (IMST), which is a part of its emergency response framework that works to make sure that there is proper and effective coordination of activities and response from the three levels of WHO, which is the Headquarters, Regional & Country for public health emergencies1. On the 13th of January, 2020 the Officials confirmed the first similar case outside China in Thailand and since then many cases have been reported from all over. Later that month the Emergency Commission of the WHO, announced that the outbreak constituted a Public Health Emergency of International Concern (PHEIC).

On the March 11, 2020, the World Health Organization declared the Coronavirus Disease 2019 (COVID- 19) to be a pandemic. From there the most part of the World went from partial lockdown to complete lockdown to restrict the spread of the disease. The effects of such restrictions were felt in all sectors of life including but not limited to the social, economic, health, etc. This did not spare its effect on the Intellectual Property Rights to be acquired as well as the already existing Intellectual Property Rights. We will discuss below in brief how the Intellectual Property Rights affected by the pandemic, the IP rights in the medical field and what influence the IP Rights would have concerning the COVID-19 vaccine.

IMPACT OF THE PANDEMIC ON IP RIGHTS

Intellectual Property Rights gives a person protection of his creation from being used by a third party. The pandemic that resulted in lockdowns and the consequent office closures has caused IP right holders to suffer damage and losses. Many companies were not working at their optimal capacity or remotely working as was also the case with the trademark offices, this could lead to missing deadlines to file renewals for trademarks or patent registrations, filing the oppositions for the applications published in the gazette on time, providing response to the opposition that are filed by a third party, thereby preventing the third party from registering an infringing mark, filing the application to claim priority on the basis of a same or confusingly similar mark in a different country, filing the required documents in Court for litigation matters, filing statements of use of a trademark, etc.

As this situation is beyond our control, most of the Registries in different countries granted an automatic extension without prior request, nevertheless this would depend on the legislations and the situations in each country. The World Intellectual Property Organization has in its theoath-me.com • the Oath 35 OPINION / Intellectual Property website2 provided information concerning the measures that has been adopted by various countries to tackle this tricky situation caused due to the pandemic. In this era of globalization, it is not only important to consider the IP office in one’s own country but also worldwide as the filings are done globally and, in some countries, it is required that the renewal and the filings should be done specifically in their Registry. Hence it is pertinent to keep a track of the deadlines everywhere as there are also chances that some Offices would not offer an automatic extension of the deadlines. Further in most of the countries, the first to file practice is adopted. The party to file the application first would be given priority, the one to file later could even be rejected during the examination stage. When a brand owner decides to file an application yet if its filing could get delayed due to the present uncertainties, then it could lose its priority over the other party who filed earlier as well as they could incur loss of time, effort and money. Under these circumstances, it is advisable that as the first step the prospective registration applicant should first file the application at its earliest convenience to be followed by the filing in other countries within six months and hence preserve the filing date of the first application provided that it claims the convention priority afforded by the Paris Convention while filing in other countries.

Regarding the hearings either before the Court or the Registrar, most of the matters have been adjourned or postponed to a different date and in case the matter is urgent, then the hearings would be held virtually.

IP RIGHTS IN THE MEDICAL SECTOR DURING THE PANDEMIC

Under the normal circumstances, medical equipment and any kind of medical products are usually protected through patents in addition to the respective trademarks. The former provides various companies the right to prevent others from using it. The right holders are allowed to enjoy the benefits received from their novel creation including the monetary benefits for a certain period of time without any interferences. However, the recent COVID-19 crisis has caused certain medical devices to be opened up for the use of all with no restrictions like the ventilators, personal protective equipment, mask, etc. in the better interest of humanity. Some countries would also have to enact legislations to make sure that there is sufficient flow of medical supplies required to deal with the disease. To cite an example, there is the possibility to suspend Intellectual Property Rights of the owner, in the IP Laws of Malta, whereby it states that where the national security and public safety so requires, the 36 ISSUE 100 • FEBRUARY 2021 concerned Authority may authorize the use and sale of an invention without the Patent Owner’s authorization, nonetheless this action should be justified by equitable remuneration to the owner or the applicant.

COVID-19 VACCINE & IP RIGHTS

At this juncture, where the vaccines for COVID-19 has been launched by various companies, there arises a question as to how much protection should be granted to these companies in order to safeguard their IP rights. At the same time, efforts are being made to make sure that people over the globe have access to these vaccines. Consequently, this would cause a tug of war between the countries that host the pharmaceutical companies and the developing countries, over the grant of IP rights or to waive the IP rights to distribute the vaccine on a large scale without posing a burden on the developing counties. Recently, India and South Africa had approached the World Trade Organization (WTO) members asking them to waive protection granted by the WTO for patents, industrial designs, copyrights and trade secrets with regard to the prevention, containment or treatment of COVID-19 until majority of the people have received immunization through the administration of the vaccines. They have said that “as new diagnostics, therapeutics and vaccines for COVID-19 are developed, there are significant concerns, how these will be made available promptly, in sufficient quantities and at affordable prices to meet global demand.”3 To this the European Union, the United States and the other developed countries have expressed their dissatisfaction. The debate is still on-going, and they have not reached a consensus yet.

Under such circumstances in the normal course, usually what could resolve the matter is licensing, which allows the patent right holder to allow others to manufacture the protected product at a protected price along with a certain control. Nevertheless, in situations like the present scenario of the pandemic, compulsory licensing would have to be offered even without the permission of the right holder. There is a delicate balance that has to be maintained between the protection of the IP rights of the holders as well as making the vaccines easily accessible to the people in the developing countries. Strictly safeguarding the IP rights of manufacturers should not be stumbling blocks in the way of providing the developing countries access to the medicines and vaccines at this point where the pandemic has claimed more than a million lives and poses to snatch many more. At the same time complete suspension of the IP rights could hinder the research and development which leads to the invention of the vaccines or medicines for COVID- 19 on account of the lack of incentives essential to inspire innovations in this regard. There should be the right balance in the WTO trade rules concerning IP rights that would not only allow countries with sufficient flexibility to protect their IP Rights, but also promote easy access to life saving drugs. The WTO should strive to maintain this balance and all the multilateral cooperation should aim at fighting to put an end to the pandemic, which is for the benefit of one and all.

Text by:
Althea Edwina Rozario
ALTHEA EDWINA ROZARIO,
Partner, senior legal consultant,
The Legal Group Advocates & Legal Consultants
 

Source: The Oath