Author: Nikhil Anand, JIMS School Of Law, Greater Noida
Abstract
This article deals with the issues arising in patent laws due to the Covid-19 pandemic . Patent is a type of intellectual property right which is granted in case of inventions and innovations . During the present times , countries have taken innumerable steps so as to make things easier for those people who were unable to handle their patent related deadlines . The major issue which exists in patent laws currently is the friction which is fight between the benefit of the public and the rights of the creators or innovators who are investing their time and capabilities so as to find a medicine for this corona virus . This article also deals with this aspect.
Introduction to Patent Laws
That form of intellectual property which confers upon its owner the statutory right to exclude or prohibit others from producing , utilizing or selling a work of invention for a limited time period which spans over some years in exchange of disclosing the details of the invention in public . Patent provides an owner with a monopoly issued by the government with sole rights of producing , selling or utilizing the invention for a fixed period of time[1] . The prime goal of granting such monopoly rights is to enable the public to make use of the information for its benefit after the patent expires[2] . The Indian Patents and Design Act , 1911 was the first legislation related to patents law in India[3]. The Patents Act , 1970 came into effect in the year 1972 which was later amended by the Patents (Amendment Act ) 2005 wherein the scope of the act was extended to various fields like technology , food , chemicals , micro-organisms and drugs[4] .
Any invention which is related to a new process or product which involves any inventive stuff and is capable of having certain industrial application can be patented in India. Hereby, the term of a patent is twenty years from the date on which the application is filed. However in cases when the application is filed under the Patent Cooperative treaty (PCT), the term of twenty years is considered from the date of its international filing. However not every invention in India cannot have a patent. Any such invention which is obvious , frivolous , contrary to natural laws , in contravention to law and morality , injurious to health of public , an abstract theory’s formulation , inventions relating to atomic energy, topography of integrated circuits , etc cannot be patented in India[5] .
Effect of Covid-19 on IPR Laws
Covid-19 has adversely effected the whole world sparing none . No business and arena is such which has not been affected by the lockdown imposed due to Covid-19 pandemic . This pandemic has also affected and left its impact on protection of the existing IPRs and on the process of acquiring of protection of Intellectual Property Rights . Under usual circumstances , IPR right holders are given protection from any third party use . This pandemic has however created such sort of a situation whereby the IPR right holders may have to forego their rights for sometime and allow third party use of their intellectual property in the interest of public[6] . This legal issue is the latest one to effect the Intellectual Property Rights holders which has been dealt with further in detail .
Issues related to Patent Laws in times of Covid-19
Medical devices and medicinal products are protected by patents so as to give the companies the legal right to inhibit any sort of third party use . Quasi monopoly is acquired by the creators over their unique invention via patent protection at least for some years . The Covid-19 crisis has given rise to the immediate need of creation of necessary equipment and medical supplies without any sort of hindrance . There is a growing need of masks , ventilators and other personal health equipment at a much greater rate than before . Several governments worldwide have felt the need to make use of certain laws or of formulating such measures which would ensure the availability all the aforesaid equipment . Another issue which has arisen due to the lockdown in Covid-19 times is related to the time periods of payment of patent fees , filing of documents , responses , etc . The fact that many patent right holders might have to forgo their patent rights is another issue being faced due to the Covid-19 pandemic .
Fight for Patents in Times of Covid-19
For lives to become normal as before , medicines and vaccines would be playing a prominent role in the present times . With the outbreak of Covid-19 , there will definitely be more innovations regarding vaccines and medicines . All such innovation would then become the subject matter of various patent applications throught the globe . It would take a few years for such a patent to be granted . However , the tension for the patent rights can even be felt now . For instance , a certain county made attempts of acquiring exclusive rights for a vaccine being developed by their scientists . There are also being collaborations between the countries and various organizations for the development of vaccines or medicines for Covid-19 . The question which however remains unanswered is whether the patent rights would act as being detrimental to the society in times of Covid-19[7] . Under TRIPS (Trade-Related Aspects of Intellectual Property Rights) , there are different ways like compulsory licensing which are available to ensure unrestricted and free access to medicines and vaccines . However beyond laws , what the society needs to give respect to is innovation . In order to protect the sanctity of patent systems and in to ensure that an anti-IP sentiment is not generated throught the globe , answers need to be formulated from within the current regime . In exceptional circumstances like those of the current pandemic of Covid-19 , there is a likelihood of societies resorting to some extreme steps so as to protect themselves. Before such ideas gain momentum , solutions of the patent issues are to be created .
Creation of patent pools is considered as being essential for tackling this problem . They act effective in aggregating , administering and licensing patents . A much fruitful and helpful solution to this issue will be the creation of global pool of Covid-19 related innovations and findings[8] . All countries must have the right to utilize innovations without seeking a permit from the patent-holders and without resorting to compulsory licensing, state acquisition, etc. Pooling of patent resources is in consonance with the Doha Declaration on Public Health which is a part of the TRIPS agreement . This declaration recognizes the need to take measures so as to ‘protect public health’ and ‘promote access to medicines’. Public-private partnerships (PPP) need to be scaled up in the form of creation of the ‘PPP-pandemic patent pool’ at a global level so as to bring together all innovations for the larger benefit of the mankind .
Steps Taken to Tackle the Issues
In light of the lockdown , the Supreme Court in a suo moto writ petition[9] exercising its power under Article 141[10] and Article 142[11] passed an order which dated 23rd March 2020 which directed the Indian Patent Office to extend the period of limitation in all types of legal proceedings irrespective of the limitation period prescribed under the general or special laws . Thereby , in lieu of the ongoing disruptions in matters of patents , the Indian Patent Office has allowed condonation of delay or extension of time period for the filing of responses and documents relating to the different processes and proceedings under The Patents Act 1970 and corresponding rules by the filing of a petition for the time period between 15th March and a month from that date on which this pandemic situation ends . The Indian Patent Office also cancelled all meetings what were scheduled to be held between 23rd March , 2020 and 14th April , 2020 . Subsequently they have allowed only for video conferencing that too only in those cases where the applicant agrees for it[12] . In the case of Intellectual Property Attorneys Association and Anr v Controller General of Patents , Design and Trademarks[13] , the Delhi High Court passed an order on May 11 2020 extending the period of limitations for acts , proceedings , filing of replies , documents etc relating to any intellectual property including patents due on or after 15th March 2020 until the Supreme Court makes any other decision or guidelines in this regard .
Gilead Sciences is an American biotechnological company which recently signed a voluntary patent licensing agreement with four Indian Pharmaceutical Companies which gave them the right to produce and sell Remdesivir , a drug which is considered as being the most effective in dealing with Covid-19 . By way of licenses , the licensee companies would be granted the requisite technology and they would be given the autonomy to decide the price of selling the drug . This is an example of Compulsory Licensing which allows a third party intervention with patentees’ exclusive rights subject to certain conditions – by granting of a statutory license to manufacture and sell the subject matter patented by way of Controller of Patents[14] . The Central government has made a declaration stating that Rendisivir are a type of subject matter of ‘national emergency’ or circumstances of extreme urgency which means that Compulsory License can be granted at any time after the patent has been granted .
The World Health Organization’s (WHO) Covid-19 protocol has a lengthy list of products which are needed for treating Covid-19 patients at different stages of the outbreak of the disease . Carlos Correa , Executive Director of developing World Centric Think Tank South Centre says that global organizations like World Health Organization (WHO) , World Trade Organization (WTO) or World Intellectual Property Organization (WIPO) must show support to WTO member countries which have invoked or will invoke the ‘security exception’ which is contained in Article 73 of the Agreement on Trade related Intellectual Property Rights ( TRIPS Agreement ) to take actions which it considers as being paramount for the protection of its security interests in wake of the threat of Covid-19 pandemic[15] .
Global Issues related to Patent in Covid-19 Pandemic
The World Intellectual Property Organization (WIPO) has taken a vital step by automatically extending limits related to all intellectual properties including Patents when the national IP offices are closed in almost all the countries . The United States Patent and Trademark Office has announced certain steps which would help the users adapt to changing work flows due to the coronavirus outbreak. During the time of Pandemic , the USPTO has decided to discontinue with the provisions of 37 C.F.R. 1.4(e)(1) and (2)[16] . It has also waived of its fees in situations in which the Pandemic prevents the applicants from replying timely to an office communication which ultimately results in the abandonment of the patent application .
The European Patent Office (EPO) has also adopted certain preventive measures which include postponing of oral proceedings in examination and opposition proceedings until any further notice is announced in this regard[17] . In Australia , if a person’s business is adversely affected such that he is unable to folloe the deadlines relates to his patents , such a person can request for an extension of time period which would be discussed on the merits of the case . A similar decision to the aforesaid one was made in New Zealand in this regards[18] . With respect to relaxations given to patent offices in Canada , the regional offices in the major cities won’t be receiving any future correspondence until the time any future notice in such regards is made . The Canadian Intellectual Property Office (CIPO) declared that all hearings of the Patent Appeal Board shall take place virtually till any further notice is made[19] . The EPO and the EU Intellectual Property Office (EUIPO) also extended deadlines/time limits for acceptance of responses to actions regarding patents and trademarks due to the impact of COVID-19[20] .
Conclusion
Laws are formulated so as to benefit the public . The Patent laws need to be relaxed or be partially suspended during the times of Covid-19 for the benefit of the public . Extension of dates related to patents be various international organization , different countries and in India is a welcome step in itself . Compulsory Licensing seems to act as a middle way between the rights of the patent holder and the public at large . Patent Pools are another way of tackling the issue . Whatever might be the case , the facts remains that Patent Rights will definitely be affected because of this Covid-19 pandemic . However for larger benefits , it is advisable to forego or suspend these rights as much as possible for the time being.
REFERENCES
[1]Fort Lauderdale , “Introduction to Patent Law” , Law Firms (June 11 2020 , 05:00 pm) https://www.lawfirms.com/resources/intellectual-property/patents/introduction-patent-law
[2]Ibid
[3]Adv Vijay Pal Dalmia ,” India: Patents Law In India – Everything You Must Know” , Vaish Associates Advocates Estb 1971 (June 11 2020, 05:30) https://www.mondaq.com/india/patent/656402/patents-law-in-india–everything-you-must-know
[4]Ibid
[5]The Patents Act 1970 , S 3
[6]GTG Advocates ,” Covid 19 and its effect on Intellectual Property” , Lexology ( June 14 2020 , 12:00 pm ) https://www.lexology.com/library/detail.aspx?g=5a6c1e3b-1ada-4ca5-96d3-10b6989e3f59
[7]Prathiba M. Singh , “ Needed: a pandemic patent pool” , The Hindu Times ( June 12 2020 , 04:00 pm ) https://www.thehindu.com/opinion/lead/needed-a-pandemic-patent-pool/article31475628.ece
[8]Ibid
[9]Writ Petition (Civil) No. 3/2020
[10]The Constitution of India 1950
[11]Ibid
[12]Rajeev Kumar and Pradeep Kumar Kamal , “ Cues to Indian Patent Office for Responding Against Covid-19” , LexOrbis: Intellectual Property Attorneys ( June 11 2020 , 09:00 pm) https://www.lexorbis.com/cues-to-indian-patent-office-for-responding-against-covid-19/
[13]WP ( C ) No. 3059/2020
[14]Anusuya Nigam and Vrinda Pathak , “Affordable Access to Covid-19 drugs : Are voluntary patent licenses here to stay “ , The Economic Times ( June 11 2020 , 09:15 pm ) https://economictimes.indiatimes.com/industry/healthcare/biotech/pharmaceuticals/affordable-access-to-covid-19-drugs-are-voluntary-patent-licences-here-to-stay/articleshow/75756605.cms
[15]Joe C Mathew , “Coronavirus: Will intellectual property be a hurdle in India’s fight against COVID-19?” , Business Today ( June 12 2020 , 06:00 pm) https://www.businesstoday.in/latest/trends/coronavirus-will-intellectual-property-be-a-hurdle-in-indias-fight-against-covid-19/story/400200.html
[16]Parul Mallik , “Global IP Scenario under Covid-19” , IIPRD Blog – Intellectual Property Discussions ( June 11 2020 , 03:00 pm ) https://iiprd.wordpress.com/2020/03/31/global-ip-scenario-under-covid-19/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
[17]Ibid
[18]Donald Zuhn , “Impact of COVID-19 Pandemic on Patent Offices and Federal Courts”, Patent Docs ( June 12 2020 , 04:37 pm ) https://www.patentdocs.org/2020/04/impact-of-covid-19-pandemic-on-patent-offices-and-federal-courts-april-12-update.html
[19]Ibid
[20]Warenzak Mathew , “ Impact of COVID-19 on Intellectual Property” , Smith Gabrell and Russell LLP ( June 12 2020 , 05:00 pm ) https://www.sgrlaw.com/impact-of-covid-19-on-intellectual-property/