In the wake of COVID-19, businesses were shut down, public spaces were closed and life as we knew it came to a standstill. Soon, all sectors of the economy started moving towards electronic modes of communication and conducting daily affairs. Educational institutions, multinational companies, government offices, everyone started working on building infrastructure and internal regulations that would help continue their functioning as close to pre-pandemic levels as possible without having to compromise on the health and safety of individuals. This has led to increasing popularity of technological applications related to education(online classes and certification courses), entertainment (online gaming and streaming platforms), communication( video calls, conference calls , etc. for personal and professional purposes), healthcare (telephonic or internet based consultation for minor and non-emergent physical illnesses, remote therapy sessions for people with mental health issues, etc.). Contactless technology has gained prominence as it helps avoid transmission of the virus through human contact. This has led to several innovations in matters of everyday life such as monetary payments, opening of doors, shopping for groceries, contactless frisking at airports, etc.
Research and development relating to finding a vaccine for COVID also commenced early in the year with several pharmaceutical companies working on innovation on existing compounds as well as trying to invent new ones for this purpose. The most recent update on this front is that the US Food and Drug Administration (FDA) has authorised the administration of the emergency use of the mRNA vaccine, BNT162b2, against COVID-19 in individuals 16 years of age or older.
All this innovation and invention meant a rise in generation of intellectual property, particularly patents that would serve the inventors working across various sectors of the economy. While there existed concerns regarding freezing of IP activities due to stagnation of business and other economic activities, the news has proved otherwise. For example, the commissioner of the Korean Intellectual Property Office (KIPO) in an interview said that “Surprisingly, the total number of IP filings in Korea this year has risen compared to last year, and as far as I understand, a similar trend is being found in other countries, too.” In the following sections, this article would throw light on the various measures adopted by various countries to ensure uninterrupted service to the public and to even encourage IP filing in spite of the pandemic.
Reasons for increase in filing of patent applications as well as patent suits during the COVID-19 pandemic
There is data that has been published, showing a consistent rise in filing of patent litigation in the US, even as the effects of the pandemic were increasingly felt. The following maybe put forth as probably reasons for this rise:
- Patent prosecution and litigation stands apart from other intellectual properties by its unique capacity to be regulated remotely. Remote initiation of legal processes and investigation in the same vein is possible, with patents. Remote attorneys possess the capacity to assist and respond to patent related needs.
- Communication and documentation regarding patent processing is possible in an entire electronic mode, making it easier for patent authorities to continue their working uninterrupted.
- Patent litigators are well versed with the use of technology and hence, have been quicker to adapt to the electronic way of legal practice, as compared to their counterparts.
- Businesses who may have formerly planned to file for patents later in the year hastened the process in view of the impending lockdown that would halt business operations in the near future. This decision to filer sooner than later would offer the businesses a tactical advantage.
- Patent owners seeking to monetise their inventions would have viewed the timing as being opportune. Claims for damages are stronger now than they would be in the post-pandemic reality where the economy would hit a major slump. Further in the realm of competitive relief, cost of litigation and the burden of recession may force competitors to abandon products or services, thus making it easier to obtain injunctions and stays.
Government intervention and initiatives
While private stakeholders left no stone unturned in adapting to the pandemic, the government authorities also showed proactive behaviour in adapting to the evolving pandemic and the challenges posed by it.
On 31st March, 2020 the World Intellectual Property Organisation (WIPO) announced that it would henceforth send electronic copies of documents instead of delivering printed manuscripts. Apart from this, various IP offices across the globe adopted measures to ease the filing and grant of patents, ranging from information dissemination and global cooperation to relaxing paperwork requirements and waiver of certain fees. Following is a brief summary of the measures taken by the various countries across these areas.
Extension of deadlines and waiver of fees
Several countries such as the US, the United Kingdom, the European Union, South Korea, and India extended the deadlines for various stages of filing documents for currently pending applications to later dates, or to when the offices would reopen.
Furthermore, petition fees for time related activities such as revival of application, renewal, etc. were waived or subsidised in view of the hardships faced by inventors against the outbreak of the pandemic.
IP Offices across the globe were quick to switch to electronic filing and publication of documents related to various stages of a patent grant.
United States of America
As early as on 16th March, 2020 the USPTO closed its offices to the public and announced that operations would continue over the internet and the telephone. The USPTO also suspended the requirement of handwritten signatures in certain documents, previously mandated under the Code of Federal Regulations.
On 15th April, 2020 the Indian office announced that while physical offices would continue to be closed, online services shall remain unaffected. There has also been a reduction in fees payable by small entities for filing and prosecuting Indian patent applications starting from 4th November, 2020.
The Venezuelan IP office activated a Virtual Attention Box Office to maintain continuity during radical quarantine, for queries regarding patent filing and prosecution.
The Swiss registry announced that assisted patent searches, patent landscaping analyses would be provided free of charge to the public, via online platforms.
Similarly, by the end of March, 2020 Georgia had moved to a complete situation of remote functioning of the IP office.
Starting from 16th March, 2020 the European Union Intellectual Property Office (EUIPO) worked remotely, and was confident that the necessary infrastructure was in place. Continuous efforts were also made to better the channels of electronic communication being used in their administration and correspondence with the public.
Various countries have resolved to come together and share information with each other regarding the status of COVID-19 responses in their respective countries, discuss and suggest practices for minimising adverse impact of the pandemic on patent filing and the general innovation climate in the country.
- On 20th October, 2020 the USPTO together with the G20 countries pledged enhanced cooperation and to share best practices that have proved successful during the crisis.
- USPTO in collaboration with the Korean Intellectual Property Office (KIPO) held a video conference that was the first of its kind, between two IP offices. The purpose of the video conference was to share the current status of COVID-19, the response by the respective IP offices and to discuss and find better ways to help the users. Both the registries also released a hotline on 1 April 2020 for prompt sharing of trends in the future.
- 16 major IP offices including Korea, India, Japan, Australia and New Zealand conducted a video conference to share their knowledge on successful practices adopted in their respective jurisdictions.
- KIPO made an announcement that they are committed to the improvement of the review and examination process of patents in South Korea, and also accelerate the process for COVID-19 related patents. KIPO also promised to share the Korean COVID-19 Quarantine model to share Korean experiences and successful response models in the field of intellectual property with the international community
- The Austrian IP office announced IP Academy seminars to enable people to sit at home and learn about the various patents, remote filing and prosecution.
Thus, we see that in this manner, there has been a concerted effort from all quarters to adapt to the pandemic, combat its chilling effect on business activities and IP generation, as well as promote filing and pursuance of patent applications and enforcement of rights by existing patent holders. The way IP offices across the globe have administered their functions and their interaction with patent owners and the public at large shows the right way forward in dealing with exigencies and also indicative of governance that would favour enhancement of entrepreneurship and innovation.