Traversing IP regime in time of war and crisis

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By Tusha Malhotra and Yamini Jaswal

The article was originally published in Asia Business Law Journal

Russia’s invasion of Ukraine has wrecked the lives of people living there, tilted global relations, and sent shockwaves across energy and commodities markets. It has also broken international rules, particularly technology and IP laws.

Conflict crisis

Sanctions against Russia have limited the country’s access to information and media, and some multinational companies have ceased operations in Russia. In return, the Russian government passed decree 299 stating that Russian companies will no longer be required to reimburse or pay royalties to owners of patents, trademarks and registered designs from “unfriendly” countries, meaning affected companies cannot enforce their patents and designs against infringement.

Judgment has been declared by a Russian court of first instance with denial of an infringement claim brought by an IP rights owner to the popular British cartoon “Peppa Pig” – solely because the plaintiff was domiciled in the UK, deemed “unfriendly” for imposing sanctions on the Russian Federation. As a result, European IP agencies have ceased co-operation with Rospatent, their Russian counterpart.

On the other hand, the Ukrainian parliament passed its Law on Protection of Interests of Intellectual Property in Martial Law, on 1 April 2022, which suspended the duration of terms related to protection of IP rights, as well as deadlines for procedures for acquiring these rights. This law applies to all IP rights holders before Ukrpatent, including both Ukrainian and foreign rights holders.

Meanwhile, the US Patent and Trademark Office also announced a break in relations with Rospatent and will no longer participate in the global patent prosecution highway if the patent application is based on work performed by Rospatent as an office of earlier examination.

The EU has imposed sanctions continually since February, including suspension of broadcasting in the EU of the Russian state-owned outlets and prohibition on all transactions with certain state-owned enterprises. On a growing list, the EU initially sanctioned 217 individuals and 18 entities, including a full transaction ban on four key Russian banks.

Pandemic storm

The continuous pandemic also disrupts the IP world. Safe, effective, and functional vaccinations were created quickly, yet the virus spread quicker as vaccines were distributed. India developed four of the eight vaccines currently in clinical studies. The government expanded vaccine manufacturing capacity and built a digital system to oversee all elements of vaccine administration while supplying vaccinations to other nations.

In March, the People’s Vaccine Alliance in India asked the Ministry of Commerce and Industry to push the WTO towards waiving all forms of IP on covid-19 vaccines ahead of the body’s general council meeting expected in June. On the other side, the innovators were opposed to the waiver of patent rights, while at the same time advancing research and developing treatment licensed to the UN-backed Medicines Patent Pool for further reach and affordability to the global population.

Following a massive drug shortage, the Supreme Court took suo moto (court action without parties’ request), asking the central government to consider the compulsory licensing of drugs such as Remdesivir, Tocilizumab and Favipiravir by invoking section 92 of the Patents Act. This would mean that generic pharmaceutical companies can manufacture them in greater quantities, increasing supply to meet growing demand.

Driven by resident filings in pharmaceuticals, the India Patent office meanwhile became the fifth-largest office globally for trademark filing activity, with 424,583 filings – a 15.4% growth in trademark activity as overall trademark filings increased by 17.4% in 2020, with nearly 57,000 new patent filings. In the midst of crisis, India has continued upgrading its IP environment, primarily in the following ways:

(1) India’s Intellectual Property Appellate Board was abolished and in a pioneering step, Delhi High Court created an IP Division, along with implementing the Delhi High Court IP Rights Division Rules, 2021, and High Court of Delhi Rules Governing Patent Suits, 2022;

(2) Discussion paper on National Strategy for Artificial Intelligence was tabled;

(3) India’s Copyright (Amendment) Rules, 2021 were notified; and

(4) The 161st report on “Review of the Intellectual Property Rights Regime in India” was published by the Department Related Parliamentary Standing Committee on Commerce.

The above-mentioned trends indicate that despite multiple crises, IP laws have strengthened and revolutionised commercial dynamics and exchanges. This will benefit many industries commercially, socially, and institutionally.

TUSHA MALHOTRA is a partner and YAMINI JASWAL is an associate at Anand and Anand.