As the situation regarding COVID-19 continues to develop, some of our Technology Scotland members have been able to respond to the calls for assistance we have been seeing across Scotland, and the UK. These responses have taken a variety of forms, from tailoring pre-existing products to provide support in these unprecedented times to innovating business procedures and practices to provide more relevant and efficient services.
We’re proud that those of our members who have been able to provide support, have offered their support in such unprecedented and uncertain times.
This week, we’re taking the time to hear from our corporate sponsors, Scintilla. Exploring the impact of COVID-19 across the IP landscape, Scintilla provides a comprehensive view looking first at their own experiences during COVID-19, from their client’s perspective, considering the IP office’s perspective and finally, sharing thoughts on the impact of COVID-19 on IP, society and industry globally.
Scintilla is a UK and European patent and trade mark attorney firm. Our job is to support clients in managing their intellectual property (IP) portfolio in the best way possible and as such we feel for all of those companies, small and big alike, who are suffering from the disruptions caused by the Covid-19 pandemic.
Below, we discuss some of the challenges and measures that we think IP professionals, rights holders (our clients), IP offices and industry are having to face.
HOW COVID 19 IS IMPACTING SCINTILLA
Lockdown is hard for everybody but for some it is certainly worse than for others. At Scintilla we feel very lucky since we are among those professionals who can work from home with no major disruptions.
Our transition to remote working has been smooth and quick, given that measures were already in place to carry out most of our procedures remotely, such as filings to the UK and international patent offices, communicate with inventors and examiners, deal with foreign agents.
Simple things like obtaining an inventor’s signature may now take a bit longer than usual, especially for our clients who are working remotely and may be located in different countries from their internal IP managers. Some of them may not have printing and scanning facilities available and communications with their support staff may not be as prompt as when working on site.
However, the only significant change in our everyday work life has probably been the impossibility to meet face-to-face with our clients to discuss their inventions. Video conferencing has of course been of great help during these weeks, but we look forward to when we will be able to have meetings in person again.
HOW COVID 19 IS IMPACTING OUR CLIENTS
Many of our clients are engineers or manufacturers who have had disruptions in on site production, R&D and sales for a few weeks now. It goes without saying that this has big economic implications, especially for smaller companies. Protecting IP can be expensive and with the current crisis we expect start-ups and SME will be the first ones to suffer from it.
Even within big corporations there may be significant repercussions. Whilst the transition for us has been smooth, we appreciate how much harder it may be to provide all employees with the equipment they need to work remotely. One of the main concerns is how our clients are ensuring that proper measures are in place to comply with data protection and confidentiality. It is of extreme importance that employees are educated about company policies with regards to, for example, the use of private and public networks, the storage of confidential files on personal devices or the disposal of paper documents and so on. Especially when it comes to patents, designs and trade secrets, it is of the utmost importance that no involuntarily disclosures are made due to a lack of attention to safety procedures and, of course, the higher the number of employees the higher the risk may be that a shortcut or an oversight may cause irreparable damage.
From a market perspective, there are many challenges that our clients will have to face during and following this lockdown. A critical deadline that needs careful attention in IP is what we call the “Convention deadline”. This is the legal deadline for making an IP filing in one country that makes a “priority claim” to backdate the protection to an earlier filing in a different country. The Convention deadline is 12 months from the first filing for patents and 6 months for trade marks or registered designs. The time window provided by the Convention deadline is usually a good opportunity for inventors and manufacturers to bring their products to the market and decide whether and where to file next, based on how successful a product is. But now three, possibly more, precious months have been taken away by the pandemic and it may be harder for our clients who were in the convention period to make an informed decision.
Another potential risk that companies have to look out for at this time is cybersquatting. This is the practice of registering a third party’s name or trade mark as a domain name to force the rightful owner to pay in order to obtain that domain name or to put in place online scams and phishing schemes. It is important that employees and customers are warned about the increased likelihood of phishing attacks. This may be especially relevant for businesses which are providing goods and services indispensable for the current crisis, such as PPE, health devices or digital platforms, to name just a few., to name just a few.
HOW COVID 19 IS IMPACTING IP OFFICES
Like most government institutions, IP offices (IPO) also had to take quick steps in order to tackle the COVID-19 pandemic. The majority of their staff are now working from home and most offices are closed to the public. Luckily, most intellectual property offices have online systems for managing patent applications and IP portfolios online, therefore the changes have been minimal and most of the services are unaffected.
Conscious that many inventors and trade mark and design owners may be facing difficulties, the UK IPO, the European Property Office (EPO) and the World Intellectual Property Office (WIPO) have all relaxed some of their rules in relation to deadlines and fee payments (though it should be stressed that this does not include the above-mentioned Convention deadline).
The UK IPO announced late in March that any day since the 24 March is considered an “interrupted day” and that most deadlines falling on or after 24 March would be extended until the first non-interrupted day. A minimum notice of 2 weeks will be given before the end of the interrupted period in order for right holders and IP professionals to plan ahead. Similar extensions to time limits also apply for international patent applications (PCT filings).
The UK IPO has also interrupted use of postal and fax services. This means that some communications that can not be dealt with by emails, such as letter related to renewals, are not being sent out. Therefore right holders should proactively check their registrations in order to avoid having too short a time frame from the receipt of the letter and the renewal deadlines once the postal communications are reinstated.
Hearings at UK tribunals have been moved to digital platforms wherever possible until 1 June 2020 and those that are not suitable for telephone, Skype or other virtual methods, such as cross-examination hearings, are being postponed till further notice.
Very similar measures have been adopted by various foreign offices and by the EPO. It should be noted, however, that some jurisdictions are now lifting the measures due to the host countries being ahead in the pandemic timeline with respect to the UK. For examples, yesterday (18 May 2020) the EPO Board of Appeals partially resumed oral proceedings in person.
With a constantly changing scenario and the pandemic progressing differently in each country, it may be daunting to keep track of all rule changes. However, your patent and trade mark attorney is there to assist you and provide you with the best guidance on how to manage your IP portfolio. The WIPO has also made available a very useful and constantly updated policy tracker which monitors the measures adopted by all member IP offices in response to the pandemic, as well as up-to-date webpages to inform applicants about changes to the international patents, trade mark and design systems.
HOW COVID 19 IS IMPACTING IP, SOCIETY AND INDUSTRY GLOBALLY
Whenever there is research and new technologies are being developed, IP is bound to play a role and this is also the case for the fight against coronavirus.
One of the long-lasting debates in IP has always been that around the usefulness of the patent system to society. While some argue that patents encourage innovation by offering a reward to the companies that invest in research, others see the patent system as an obstacle to free competition and therefore to faster technical progress.
The debate is now more relevant than ever with so many big pharma companies involved in the race to develop a vaccine. And while there are some that think the investments we have seen in the past three months would not have been possible without the stimulus of the IP system, others are convinced that the patent system was and still is inefficient in stimulating research around drugs.
People are concerned about what will happen when a vaccine will be developed. Whichever pharmaceutical company or research centre will find it first, will they seek a monopoly or make it available to other manufacturers?
We believe this crisis has shown that tech companies and governments are able to find quick solutions and strike a balance between IP protection and the public good when faced with an emergency. Pharma companies are aware that governments may enforce compulsory licensing in exceptional circumstances and during the Covid-19 pandemic there have already been steps in this direction. Should they not behave sensibly, they would risk being forced to give up their rights while at the same time suffering a huge image damage. On the contrary, companies and universities have been developing new technologies at record speed and some inventors have been filing “defensive” patent applications to ensure a free and ethical use of the technology rather that to prevent third parties from using it.
Tech giants such as Amazon, Facebook and IBM, have joined the Open Covid Pledge, an initiative developed by an international group of scientists and lawyers to accelerate the rapid development and deployment of any technology that might help fight the pandemic.
The UK government’s call for help in manufacturing ventilators a few weeks ago, prompted various manufacturers to join the Ventilator Challenge UK, a consortium created to scale up production using existing designs. Despite there being no formal licensing in place, the Government promised they would cover the risk of legal actions if the new ventilators were in breach of any IP rights. But this is again unlikely to happen. According to UK law, the government can indemnify any infringement action under the exception of “Crown use”, which allows them to authorise manufacturers to use any patents without the permission of the right holder if circumstances require it, with the understanding that the Government will later compensate the proprietor.
Tech and pharma companies have now had plenty of time to consider the exceptional circumstances and the ongoing debates and are aware of the reputational damage that they may incur should they appear to be impeding the fight against the pandemic. It is very unlikely that IP rights will ever be a hindrance to the fight against coronavirus, rather it will be actions of our leaders that will determine the faith of whatever vaccine or medicine or diagnostic invention is developed, much in the same was as it was just a few weeks ago for the import and export of masks around the globe.
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