With lockdown or lockdown like situations in more than 170 countries, COVID-19 pandemic has indisputably changed the way the business goes around the world. The life is not as usual as it used to be before COVID-19 pandemic, there are changes in policies, ways of doing business and the lifestyles of masses. With disruption of many activities due to the spread of COVID-19 pandemic, it became challenging, if not impossible, for many to match timelines. Measures taken by some of the important Patent offices across the globe to address unprecedented situations caused by COVID-19 pandemic have been enumerated herein to identify what additional measure could Indian Patent Office work to support and promote IP in response to situations caused by COVID-19 pandemic.
The Indian Patent Office in view of the ongoing disruptions caused by COVID-19 pandemic have allowed condonation of delay/extension of timelines to file responses and /or documents relating to various proceedings under the Patents Act and corresponding Rules by filing a petition without fee for the period falling between March 15, 2020 and a month from the date when such pandemic situation ceases to exist. Indian Patent Office have also cancelled all hearings scheduled between March 23, 2020 and April 14, 2020 and have subsequently appointed hearing only through video conferencing, if agreed by the applicant.
The European Patent Office (EPO) apart from the safeguard provision under Rule 134(5) EPC, which may be invoked by the applicants in cases where the non-observance of a time limit is the result of exceptional circumstances beyond the applicant’s control has also provided a circumstantial extension of periods to timelines expiring on or after March 15, 2020 for all parties and their representatives to June 2, 2020.
USPTO have extended the time to file certain patent-related documents and to pay certain required fees that would otherwise have been due between March 27, 2020 and May 31, 2020 to June 1, 2020. However, for small and micro entities, the extension would be up to July 1, 2020. USPTO have further launched a COVID-19 Prioritized Examination Pilot Program for small and micro entities and a platform “Patents 4 Partnerships” to facilitate the public with a user-friendly, searchable repository of patents and published patent applications related to the COVID-19 pandemic that are indicated as available for licensing.
Japan Patent Office (JPO) and China National Intellectual Property Administration (CNIPA) have come up a flexible approach for extension of time limit under the Patent Law. JPO have provided a detailed outline of measures and guidelines for Handling of Procedures Affected by COVID-19, which suggest the applicant that if they are not able to carry out procedures within the time limits designated by the Japan Patent Office (JPO) due to the COVID-19, they can carry out a suggested procedure within 14 – 60 days from the time it becomes possible. While CNIPA, in the cases where the delay is attributable to any cause related to the COVID-19 epidemic have provided that The party may, within 2 months after the impediment is removed, request a restoration of rights without any request fee. CNIPA has also launched an Information Sharing Platform for Patents on Epidemic Prevention against COVID-19.
Korean Intellectual Property Office (KIPO) besides providing an extension of deadline falling between April 30, 2020 and May 30, 2020 to be extended until May 31, 2020 have also provided a 30% reduction in domestic application fees and 75% reduction in PCT search fee for applicants in certain areas that are particularly impacted by COVID-19. KIPO also launched a priority screening system to assist in obtaining quick and fast rights to COVID-19 related applications.
IPO UK have declared March 24, 2020 and subsequent days until further notice as interrupted days and thus an extension to most of the deadlines falling on an interrupted day to the first non-interrupted day thereafter is provided.
The German Patent and Trade Mark Office (DPMA) in a unique manner have provided that if any person who, owing to the current situation, has not observed a time limit imposed by law without any fault on his part can subsequently have their procedures re-established upon request and they will then be in the same position as if they had observed the time limit.
IP Australia have provided a streamlined process for free of charge requests for extension of time falling between April 22, 2020 until at least June 30, 2020. IP Australia also released a package of patent information products to help researchers and decision-makers identify know-how, supply and manufacturing capability in the COVID-19 pandemic.
National Institute of Industrial Property (INPI), France have provided that all deadlines occurring in the period between March 12 and one month after the end of the state of health emergency are postponed by one to two months after the end of emergency period.
Canadian Intellectual Property Office (CIPO) have extended most of the deadlines falling between March 16, 2020 and May 29, 2020 until June 1, 2020. Canada has also passed an emergency legislation entitled An Act Respecting Certain Measures in Response to COVID19.
Israel Patent Office (ILPO) have allowed an extension of time to applicants who did not meet a deadline set by law or a deadline before the ILPO due to COVID-19 circumstances by filing a request for an extension with reasons and details of events. ILPO has also provided for accelerated examination of patent applications relevant to the fight against the coronavirus.
After going through the measures adopted by different patent offices, where most of them have provided extension of the timelines, the Indian patent office responded equally well and provided extension to deadlines to ease the applicants of deadlines falling during crises period. Although, patent offices like JPO, CNIPA and INPI, which have used a flexible approach for availing extension seems to be more plausible in current pandemic situation. Patent offices like USPTO, CNIPA, KIPO and IP Australia have also come up with initiatives to promote innovation and commercialization of available technologies to combat the pandemic situation by providing the suitable platforms for information sharing. USPTO, KIPO and ILPO have further provisioned for accelerated examination of invention related to the COVID-19 pandemic. It worth mentioning that while many countries were forced to bring-in specific legislatures to equip themselves to tackle COVID-19 pandemic viz. US (Coronavirus Aid, Relief, and Economic Security Act), Germany (Act for the Protection of the Population in the Event of an Epidemic Situation of National Significance), Canada (An Act Respecting Certain Measures in Response to COVID-19) and France (Emergency Law No 2020-290), the Indian legislation is well envisaged to handle such emergency situations. Section 92 and Section 100 of the Indian Patents Act enables for compulsory licenses on notifications by Central Government and the Central Government or any person authorized in writing by Central Government to use the invention for the purposes of Government, particularly in circumstances of national emergency or extreme urgency or public noncommercial use including public health crises related to epidemics, without adhering to procedure. With over 0.21 million COVID-19 case, India haves seventh highest reported COVID-19 cases and Indian Patent Office taking cues from other Patent offices should promote and incentivize invention that may be of any importance in tackling COVID-19 pandemic by provisioning for the expedited examination and fee waiver or reduced fee structures for such inventions. In any event, such inventions and innovations are most significant for public good and should be supported by all stakeholders.
Article by Rajeev Kumar and Dr. Pradeep Kumar Kamal, 1st published on Lexology.