COVID-19 and Its impact on IPR in India and Abroad

Introduction

The lethal effect of the COVID-19 pandemic has been felt worldwide affecting all the business sectors in the world. Be it, the rich, or the poor class in the society, everyone seems to be thundered by the COVID-19 blow. The virus that has originated from the Wuhan city of China, and spreading almost to the rest of the world, has been officially declared a pandemic by the World Health Organisation (WHO). The panic of the COVID-19 seems to be increasing, as the medical teams and researchers are working tirelessly day in and out but there’s no sign of a vaccine yet. The Corona virus or COVID-19 has affected 41,32,430 people around the globe, out of which 2,81,064 have died. India alone has 64,149 patients out of which 2,114 have died. The technical term COVID-19 is an abbreviation of the Corona Virus Disease 2019. As a result of which travel bans have been enacted in various countries. Since every business sector is getting affected by this, the legal field is equally affected. The virus also has significant impact on the IPR world rendering the Courts and the National Intellectual Property offices non-functional[1].


Challenges faced in India and Abroad

As the lockdown has been imposed in order to maintain social distancing which is, for now, is the only key to break the chain. This lockdown has also brought certain challenges in the IPR field. In India, Supreme Court of India has issued a circular on March 14, discouraging casual entry of all visitors in the court premises except for the lawyers, that too, after thermal screening them. The Indian Trademark Office has temporarily suspended all hearings from 17 March to 15 April and is rescheduled “in due course”. The Copyright Office has also adjourned all the hearing related to copyrights from 17 March to 31 March. Acting on the same The Patent Office issued notice, advising parties to use provisions of Rule 6 (6) of Patent Rules Act, 2003 to condone any delay or extend time in filing documents. In addition, the two medicines, Fevipriavir and Remidisivir, which are under clinical trials to see if they can be reassigned for COVID-19, are patent protected in India unless the patent holders insist upon its IP rights[2].

Similarly, The European Intellectual Property Office (EUIPO) has suspended all deadlines that expire on 30 March to 1 May. The European Patent Office (EPO) extended all the deadlines and stating that it could be extended further if the disruption continues. Recently, Swiss multinational Roche, world’s leading diagnostic kit maker was accused of withholding a chemical formula for a reagent, a buffer used in its polymerase chain reaction-based test for COVID-19. Roche was blamed for its inability to supply sufficient volumes of this reagent as one of the reason for delay in coronavirus tests in respective countries. Roche was well standing in its legal rights not to share its Intellectual Property Right (IPR) protected formula and the ventilator maker Intersurgical must have seen its IPR violated. But many countries are not dependant on the nobility of IP holders. Chile, Germany and Israel have already issued orders to amend its Patent Act to facilitate compulsory license for any IP protected product for the use of COVID-19. World Intellectual Property Organization (WIPO), World Trade Centre (WTO) and World Health Organization (WHO) have addressed in an open letter by Carlos Correa, Executive Director of South Centre an international think tank. The letter urges these organizations to “support those WTO member countries which invoke the security exception contained in Article73(b) of the TRIPS Agreement 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

  • Courts to review Patent Law and pass an interim order to have free access to Intellectual Property in pharmaceutical industries.

  • Creating a pool – a collection of patents rights, vaccines and medicines with free licensing or access on affordable and reasonable terms for all countries.

  • It is advisable that the companies not file any lawsuit 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.

  • Government can announce giving royalty to potential IP Holders and getting access to their intellectual property in return.


Conclusion

To put it in a nutshell, Although COVID 19 has hindered the working of the legal field but the shortcomings are overcome by the measures taken by the Supreme Court and National IP Offices and also by several countries by amending its patent laws. 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. I have made sure that the broad contours of the problems and suggestions are discussed relating to IP offices in India and abroad.


References

1. Sana Singh, ‘India on lockdown due the COVID-19 outbreak- How will IPO function?’ (Singhania &Partners Pvt Ltd, 4 April 2020),

2. Francis Gurry, ‘Some Consideration on Intellectual Property Innovation, Access and COVID-19’, (World Intellectual Property Organisation, 24 April 2020),

3. Joe C Mathew, ‘Coronavirus: Will Intellectual Property be a hurdle in India’s fight against COVID-19

4. Trade Related Aspects of Intellectual Property Rights, art. 73(b), Jan. 1, 1995.

[1]Sana Singh, ‘India on lockdown due the COVID-19 outbreak- How will IPO function?’ (Singhania &Partners Pvt Ltd,(4April2020),https://singhania.in/intellectual-property-offices-notification-scheduled-hearings-covid19lockdown-2 (accessed 13 May 2020)

[2]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. (accessed 13 May 2020)

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