The changes brought on by the worldwide COVID-19 pandemic have left several business sectors stranded. Furthermore, the pandemic has severely impacted the security of conventional intellectual property rights (‘IPRs’), especially in the context of gaining protection. Continue to read more about covid-19 effects on Intellectual Property.
In regular conditions, IPR holders are granted protection for their intellectual property (aka ‘IP’) against third-party usage. However, the COVID-19 pandemic has created unprecedented circumstances for IPR holders to temporarily allow third-party usage for their IPRs, such as patents or designs, for common public benefit. In light of this, during this article, we shall discuss more COVID-19’s effects on businesses and their IPR’s in general as well as on Intellectual Property Rights in India.
But before we begin, let us get familiar with IPR’s basics.
What Exactly Are Intellectual Property Rights?
Intellectual Property Rights are designated legal rights which provide the creators’ security for their original inventions, works artistic creations, or the appearance of certain products, scientific developments, among others.
There are four core categories of Intellectual Property Rights (IPR): patents, copyrights, trade secrets, and trademarks.
Types of Intellectual Property Rights
Given below are brief explanations of the types of Intellectual Property Rights in India and elsewhere.
A patent is used for preventing an original invention from being sold, re-created, or used by somebody else without the creator’s permission. Patents are the most general kind of intellectual property rights to exist. A Patent Owner holds all rights to commercialize their patent; including buying/selling that patent or granting a license to any third party under commonly agreed conditions for copying that invention.
There are three distinctive categories under which patents fall:
- Utility: A utility patent shields the generation of a new or updated product, the composition of a substance, process, or technically useful machine.
- Design: This type of patent protects the appearance of an item from being copied.
- Plant: This protects genetically unconventional plants from being propagated.
A trademark is a distinctive connotation that helps companies and their respective goods and services to stand apart. This allows consumers to recognize them easily, thereby subconsciously assigning certain brand value. Famous examples include the Facebook logo, McDonald’s golden arch, and Twitter’s bird, among many others. A trademark can include a phrase, smell, symbol, and text, sound, and color pattern. Unlike patents, trademarks extend their protection towards an entire class of services or products, instead of merely one process or product.
A copyright’s ambit does not shield ideas. On the other hand, it only protects “tangibly” original creations such as music, drawings, art, architectural, and even programming codes. The copyright owner holds exclusive rights to publish, sell, or recreate literary, dramatic, musical, architectural, or artistic work originally made by its author.
Trade secrets are a business’ secrets. They protect strategies, formulas, proprietary systems, or any other piece of information that is not permitted for unauthorized commercial use and is purely confidential. This is the most critical type of protection that helps businesses to obtain a competitive edge.
Although intellectual property rights protection may provide some level of protection, when utilized wisely, they can maximize the value and benefit of the creation while enabling transformative technology to develop, be protected, as well as monetize.
Trade-Related Aspects of Intellectual Property Rights-agreement and flexibilities
All those countries that are members of the World Trade Organization (WTO) have national laws to comply with the WTO TRIPS Agreement related to Intellectual Property protection and enforcement. The TRIPS Agreement mandates WTO members to allow patent protection under a minimum duration of 20 years for pharmaceutical products. This has severely affected certain countries’ ability to create a strong local pharmaceutical market.
India needed to amend its patent law for effectively enabling foreign pharmaceutical companies to gain patent protection for certain medicines. As a result, India’s generic companies needed to obtain a permit from Gilead-Remdesivir’s patent holder-to create and supply the drug for COVID-19 treatment. Currently, only five Indian pharmaceutical companies hold the license-as provided by the patent holder-for mass-producing Remdesivir. However, more Indian companies could have manufactured the drug to allow sufficient availability at an affordable price in the patent protection’s absence.
Governments can apply a certain number of flexibilities under the TRIPS Agreement for ensuring that their Intellectual Property Rights do not limit the availability and innovation of technologies needed for combating COVID-19. Until now, different countries’ national measures focused on enabling health ministry’s to grant government authorizations or compulsory licenses. On the other hand, certain countries are now offering indemnity against the use of competition law and Intellectual Property infringement proceedings.
The Supreme Court of India’s Latest Order for Intellectual Property Rights’ in India
Under the prevailing conditions of the COVID-19 pandemic in India, the Supreme Court of India passed a Suo Moto Writ Petition (Civil) No 3/2020 (SC Order) dated 23 March 2020.
This order, although necessary, is very for ambiguity for those who need it. This order considers the fact that litigants will face certain difficulties in Intellectual Property filings with their applications/ suits/ petitions/ appeals/ and other proceedings due to the pandemic. This order, therefore, seeks to ‘extend’ the period of limitation from March 15, 2020, until further orders. This order binds all tribunals, courts, and law authorities (that include IP offices) in India. This order extends deadlines prescribed under the general law of limitation and those prescribed under a special law, such as IP statutes.
However, it appears that the Controller General of Patents, Designs, and Trade Marks (“CGPDTM”) has taken a contrary position to the Supreme Court’s order.
What’s the ambiguity in the Supreme Court’s order?
The ambiguity comes from the connotation ascribed to the word “extend”.
Assuming the “extension period” spans from March 15, 2020, until another date set by the Supreme Court, does the Court’s extension mean “stopping the clock” during this time such that the extension period is added to the limitation period? Or does this mean not adding the extension period to the limitation period? Will the duration then act as a “grace period” until the future date is set again by the Supreme Court?
Without any clarification yet about the latest notice issued by the Supreme Court of India regarding COVID-19 and IPR, adopting a safe approach at this time is important. Thus, you need to be prepared with the documentation required to be filed with IP offices deferring formalities like notarization, execution, etc. until further clarifications.
we are sure that we can assist you in the process. If you are facing any trouble with the trademark registration process, Narula & Narula is there to troubleshoot it with their wisdom.