Preference for Collaborative and Open COVID Innovation and Creativity | BananaIP Counsels

The Director General of the World Health Organization (WHO) stated while declaring COVID-19 as a pandemic that COVID is not just a public health crisis, but a crisis that will touch every sector. True to his words, COVID has affected all sectors, and the much needed measures taken by Governments to contain its spread are causing economic difficulties. As per the International Monetary Fund (IMF), the continuance of the crisis and related measures might soon lead to global financial instability. All businesses have been affected by the crisis in one way or another, and intellectual property activities have significantly slowed down over the last few weeks. However, collaborative and cooperative innovation initiatives aimed at containing, preventing, testing and curing COVID are increasing by the day.

Relevance of Intellectual Property

Humanity is currently going through a very tough phase, and one cannot help but wonder if intellectual property is truly relevant under the circumstances. The world is in dire need of inventions, innovations and creations that have the ability to help human beings tide over the threat posed by the Corona virus, and the question some scholars are asking is whether the solution lies in incentives provided by the IP system, or if a different regime is required. From the steps taken by Governments, academic/research institutions, businesses and inventors so far, one can infer that they are not relying on incentives afforded by the IP system to combat the COVID threat. They are instead counting on collaboration, cooperation and openness to achieve their goals.

As a variety of collaborative and open initiatives take shape, supporters of the IP system continue to argue that investing money, time and resources in COVID related research may not be forthcoming unless IP incentives or other similar incentives are provided to businesses. They reason that businesses will not find it worthwhile to invest in COVID related inventions unless they see the promise of returns from their investments, which is possible only through IP protection. Lack of appropriate incentives, they opine, will not only limit R and D funding, but may also affect invention/innovation quality. From their point of view, only IP incentives combined with public funding, tax incentives and subsidies alongside promise of appropriate compensation can produce the desired results.

Intellectual Property Filings, Examinations and Registrations

Several IP offices across the world have announced measures to address the problems being faced by intellectual property applicants and attorneys because of COVID-19 and related actions. The Indian Patent Office has adjourned hearings, limited physical interaction and provided options for extending statutory timelines. The Korean IP Office has gone a step ahead of the other IP offices and has created a platform to facilitate research, development and manufacturing of COVID tests, vaccines and treatments, and has also established a system of granting COVID related patent applications in just ten days.

Owing to the COVID crisis, the number of IP filings, examinations and registrations have predictably gone down significantly during the last few weeks and they are expected to reduce even further if the containment measures continue. The Indian IP Office has remained closed since the Government of India announced the lock down, and though the online filing systems are working as earlier, most other activities have literally come to a standstill. The tabularized information below shows the extent to which IP filings in India have reduced during the lock down.

Particulars	1st to 14th April 2018	1st to 14th April 2019	1st to 14th April 2020	Change in percentage between 2018 and 2020	Change in percentage between 2019 and 2020
Number of applications published	1685	1562	706	58% decrease	55% decrease
Number of examination reports issued	1975	1629	312	84% decrease	81% decrease
Number of grants	420	562	406	3% decrease	28% decrease

The total number of patent applications published between 1^{st and 14th April,} 2020 decreased by as much as 55% when compared to the number of applications published during the same period in 2019.  Similarly, the total number of examination reports issued between April 1 and April 14, 2020 decreased by 84% and 81% as compared to the examination reports issued during the same period in 2018 and 2019 respectively.

Industrial Designs

Particulars	1st to 14th April 2018	1st to 14th April 2019	1st to 14th April 2020	Change in percentage between 2018 and 2020	Change in percentage between 2019 and 2020
Number of registrations	406	369	0	100% decrease	100% decrease

As may be observed from the table, no designs were registered between April 1^st and April 14^th 2020. The previous years witnessed significant design activity during the said period.

Trade Marks

Particulars	1st to 14th April 2018	1st to 14th April 2019	1st to 14th April 2020	Change in percentage between 2018 and 2020	Change in percentage between 2019 and 2020
Number of filings	12143	12385	3802	69% decrease	69% decrease
Number of applications published	11576	13958	0	100% decrease	100% decrease
Number of examination reports issued	5455	3042	0	100% decrease	100% decrease
Number of registrations	13916	6051	0	100% decrease	100% decrease

As seen from the details provided in the table, Trademark filings decreased by 69% between April 1 and April 14, 2020 in comparison to the number of Trademark applications filed during the same period in 2018 and 2019. No trademark applications were examined or registered during the period.

Particulars	1st to 14th April 2018	1st to 14th April 2019	1st to 14th April 2020	Change in percentage between 2018 and 2020	Change in percentage between 2019 and 2020
Number of filings	1247	769	258	79% decrease	66% decrease

As provided in the table, copyright filings dipped by 66% between April 1 and April 14, 2020 in comparison to the number of copyright filings between April 1 and April 14, 2019; The percentage of decrease becomes more pronounced when copyright filings between April 1 to April 14 in 2018 and April 1 to April 14 in 2020 are compared.

The reduction in IP filings is expected to continue until the containment measures are in place, and even thereafter, the   predicted economic down turn might have a negative influence on   IP activity in India.

Cooperation and Collaboration

Innovation and research efforts towards developing inventive and creative products and solutions pertaining to COVID-19 have so far largely been cooperative and collaborative. Research and development of tests, vaccines, treatments, protection equipment, tracing technologies, sanitization solutions, and so on is being primarily funded by Governments with the private sector playing a secondary role. The Indian Government has set up a task force to fund innovation, productization and production of technologies and inventions   related to COVID through public-private partnership, collaboration and funding. It has also established a platform to share data, information and ideas for developing products and solutions. The emphasis is on sharing and cooperation rather than on incentives from IP exclusivity. Intellectual property is in fact being seen as a hurdle to COVID related innovation and creativity.

The trend is similar across the world, and different mechanisms are being explored to avoid hindrances from patents and other forms of intellectual property. Some Governments have already taken steps towards removing patent and other IP hurdles, and others are expected to take such steps soon. Countries like Israel, Germany, Canada and India have invoked emergency legislations, which expressly or implicitly include the power to use patents and other forms of IP without the holders’ permission during the emergency. India now has the option of notifying relevant patents for compulsory licenses based on national emergency or extreme urgency. Countries like Ecuador and Chile have already taken steps towards   compulsory licensing of COVID related patents.

In the spirit of cooperation and accessibility, the United Nations General Assembly recently passed a resolution calling for timely development of vaccines and treatments for COVID emphasizing that they must be made available to   developing countries in an equitable manner. Earlier, the Costa Rican Government proposed the establishment of a patent pool to make patented products pertaining to COVID reasonably accessible and affordable. The said proposal has been vouched by WHO, and the World Intellectual Property Organization (WIPO) is currently considering the possibility of creating such a pool.

The Medicines Patent Pool, which negotiates patent licenses over life saving medicines in low/middle income countries to facilitate manufacturing and affordability of such medicines has recently extended its scope of activities to health technologies/inventions. The organization’s objective is to pool patents from different parties, and make medicines, vaccines and tests available in a broad based and accessible manner to all countries.

Another collaborative initiative that seems to be making significant progress is the Open COVID Pledge. The initiative is aimed at making COVID related intellectual property open and available free of charge under an open license. Many organizations such as IBM, Intel, Facebook, Amazon and so on have taken the pledge as of date.

Open COVID Content

To help in the fight against COVID, some reputed publishers and aggregators have agreed to make COVID related content open and available on different data repositories such as PubMed Central. The list of publishers includes Lancet, Royal Society, Springer Nature, Oxford University Press, Cambridge University Press, Wiley, and Elsevier. They are making data, information and articles available to researchers in a machine readable format under a license that allows text and data mining.

To enable easy access to COVID related patent data and information, WIPO has launched a search functionality for its global patent database, PatentScope. As a part of the new feature, WIPO has included dozens of search strings that will enable scientists, researchers and others retrieve patent data easily. WIPO is hoping that the intelligence in more than 80 million documents in its database will help in developing inventions for COVID detection, prevention and cure.

COVID-19 may be called as one of the worst crises to hit mankind. Though the crisis has divided human beings physically, the world is together in its fight against the virus. In the broader scheme of things, the incentives provided by the IP system do not seem to have much value in promoting creativity and innovation required to resolve the health crisis. Intellectual Property is being perceived by many as a hurdle and hindrance that must be set aside to win the battle against COVID. The world is relying on cooperation, collaboration, sharing and openness rather than on IP incentives in its quest for tests, vaccines and treatments.

May be, a new world of IP with a different philosophy awaits us on the other side of COVID-19.

Join the Open COVID Pledge

BananaIP urges companies, research organizations and other IP holders to join the Open COVID Pledge, and make their patents and other intellectual property available free of charge for humanity’s fight against COVID-19.

My sincere thanks to Gaurav, Uma and Neharika for their research support.

References

available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020, visited on 20th April, 2020.

 

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