2022-01-06
Summary: I. INTRODUCTION.—II. INTELLECTUAL PROPERTY.—III. INDUSTRY DATA AND EVOLUTION IN SPAIN.—IV. INDUSTRY DATA AND EVOLUTION GLOBALLY.—V. IMPACT ON THE MODUS OPERANDI OF THE INDUSTRY.—VI. FINAL REMARKS.—VII. REFERENCES.
This work studies the impact of the pandemic caused by the coronavirus in such the key sector of intellectual and industrial property. Said impact shall be analysed from two perspectives: the one corresponding purely to the business figures of the sector (both nationally and worldwide), and the one encompassing the changes in the management modeland modus operandi undertaken by both public agents and firms in the industry in an effort to adapt to the new socio-economic reality imposed by the pandemic.
KEYWORDS: Intellectual property, patents, trademarks, industrial designs, innovation, creations, coronavirus, impact, change management.
The global pandemic caused by the SARS-CoV-2 Coronavirus, responsible for causing the infectious disease called “Covid-19”, has not only claimed too many lives, but has also changed those of us who are still in this world.
The mere fact of adapting to this unprecedented new reality for us all is already a testament to, stricto sensu, both individual and social intellectual capacity and willpower, as pointed out by Joaquín López Bravo (2020). However, López Bravo also warns that, in the early phases of the pandemic in 2020, many criticisms arose against patents due to them being seen them as an obstacle to having a vaccine. And that is because behind a vaccine there is a very extensive process (of extreme duration in various industries) that ranges from the conception of the product through the investigation of its effects, and from its proper preparation and manufacture to the showcase. And of course, the health, social and economic need in times of the pandemic is of extreme and prevailing urgency.
It becomes intuitive that the impact produced by the coronavirus is going to be (if you would allow me the intended pun) patent in the intellectual property industry, which in turn constitutes a mandatory channel of innovation for both individuals and society. As defined by Roca Junyent (2019), intellectual property in Spain protects creations that are related to the secondary sector, that is, industry, through inventions (patents and utility models), trademarks (or distinctive signs) and industrial designs, legal figures that grant declarative rights that must be requested by the interested party and go through an examination procedure until they can finally be granted.
As L. Ortiz (2020) affirms, intellectual property is a highly versatile strategic asset, which, when well used, allows us not only to obtain competitive advantages in the commercial field, but also facilitates balancing aspects such as economic and commercial benefits with scientific and access to technologies and encourage their improvement. In this way, problems that previously did not have a solution or suffered from the application of insufficient remedies, such as the pandemic that unfortunately accompanies us, can actually be solved.
In Spain, we can find some encouraging data. Julio Miravalls (2021) comments on the data published in early 2021 by the Spanish Patent and Trademark Office (hereinafter, SPTO) which, although coming from an interim report, they do indicate a considerable increase in the number of applications for different types of intellectual property assets during 2020. In patents, for example, the number of national applications exceeded 1,400 in 2020, compared to 1,358 applications filed in 2019. Regarding applications for national trademarks, 51,103 were reached, compared to 50,693 from the previous year.
How does this increase happen in the midst of an unprecedented crisis like the coronavirus? Several specialists in industrial property interviewed by ElDerecho.com attribute it to the bet made by small and medium-sized companies in Spain to increase their innovative activity in order to survive or improve their opportunities in the market, in a clear ascription to the saying "renewed or die". Therefore, intellectual property continues to be not only an expense (or rather, investment) that can be afforded, but rather one that one cannot afford not to have and that must be prioritised in order to gain competitive advantage by leveraging corporate darwinism.
In pursuit of a holistic approach to understanding the influence of coronavirus in the intellectual property industry, we found that the evolution of applications seeking protection overseas has been negative, must also logically be taken into account. Spanish applications for international patents via PCT fell 2% between January and September, as did applications for international trademarks and European Union Trademarks (hereinafter, EUTM), with falls of 12% and 5% respectively. Industrial design applications, both in the European Union and globally, also dropped by 7% (elderecho.com, 2020). These data represent a potential setback in Spain''s international competitiveness, since they illustrate a preference for the national protection of its industrial property assets over protection at the European or international level, a trend that had been reversed before the pandemic.
The European Council published in the Official Journal of the European Union on November 10, 2020, its conclusions on the policy on intellectual property and the review of the Union''s system for industrial designs. In essence, the European Council reached the following conclusions:
1. Coronavirus makes it more important than ever for intellectual property to leverage an effective and balanced system that allows it to be a motivator for investment in innovation and creativity, rather than being perceived as an obstacle. To achieve this, the Council proposes to improve and to update the pertaining European frameworks, thus improving the applicable legal framework as a whole.
2. Need for a coherent global strategy that guarantees both the protection of innovation and equitable access thereto, in conjunction with a solid, efficient, transparent, and balanced system for the protection of intellectual property assets. The aim is for all companies established in the Union, including SMEs, to be able to make effective use of their intellectual property portfolio to gain competitive advantages.
Lastly, in terms of the countries with the highest number of applications, the United States had seen a decrease in both patents and trademarks at the end of September 2020, compared to 2019, with an encouraging upturn in trademark applications and a stalemate in patent applications (American Bar Association, 2020). For its part, China also saw a decrease in the number of applications for inventions until February 2020 (the peak of the effects of the pandemic for the Asian giant), with an increase of 8% in April 2020 compared to the previous year, and an impressive 77% boom in the case of utility models (Wininger, 2020).
V.IMPACT ON THE MODUS OPERANDI OF THE INDUSTRY
The pandemic affected the normal functioning of many intellectual property offices around the world. The European Union Intellectual Property Office (EUIPO), which is in charge of registering European Union trademarks (formerly known as the “community trademark”) as well as community designs and models, issued a statement on March 16, 2020, announcing that all deadlines established to expire between March 9 and April 30, 2020, and affecting all parties before the Office, would expire on May 1, 2020. In the same vein, the European Patent Office (EPO), which evaluates European patent applications, took another series of measures such as extending the deadlines that were set to expire from March 15, 2020, to April 17, 2020. Currently, in addition, the majority of intellectual property offices are applying teleworking.
Industrial property also leaves other disruptive indirect effects. In other services, such as licenses, there are usually provisions for the payment of royalties or other obligations, such as minimum purchases or sales, which can be difficult to maintain in the long term in the midst of a very unstable business environment (Ferrante, 2020).This entails an excessive supervened onerosity that could be accosted by applying the well-known clause of jurisprudential origin rebus sic stantibus, or by means of other techniques such as those implemented by China, granting SMEs a certificate of force majeure
that exonerates them from meeting these obligations that have become too burdensome (Ferrante, 2020).
Another interesting topic is the effect that coronavirus has had on the industry from the point of view of the modus operandi, the organisation and the way of working in the sector from a holistic perspective. Being a non- essential sector, intellectual property, as well as legal services in general, constitute a sector that, by its very nature, is highly productive and adaptable to teleworking. Ever since the arrival of the pandemic, many intellectual property firms have opted out for the establishment of a stable and secure VPN network from which their employees can access the firm''s internal files. This, combined with the use of portable equipment, makes working from home virtually no different at all from working from the office, having all the necessary tools to carry out the work in a timely manner. Additionally, the Microsoft Teams software is very a effective one when it comes to maintaining smooth and fluid communications between co-workers, enabling them to hold internal meetings with the utmost normality. As Begoña González (2020) also states, work organisation and staff mobility are key to deal with the crisis caused by coronavirus, as well as an additional innovation driver to the medical dimension.
At present, however, there is a progressive swift in favour of returning to the office, mostly mixed with telework, establishing a portion of working days in the office and another of teleworking, normally with a predominance office days.
The devastating socio-economic consequences of coronavirus’ outbreak have been felt strongly, and everything seems to indicate that they will continue to be felt for a long while. Intellectual property, consisting of rights to protect and promote innovation, has not been on the sidelines of this change in reality: there has been an active role in modifying the modus operandi of its agents and institutions, it has seen the course of its internal procedures significantly altered, and has seen a decline in number of applications filed for both trademarks and patents (the two most prominent figures in the industry) around the world during the first months of the pandemic.
However, the latest data show a recovery and a possible encouraging wind of change, from which it is inferred the message that conveys investment in innovation is key to reinventing ourselves in order to mitigate (and, eventually, overcome) the damage caused by the pandemic. Innovation, hand in hand with the role played by intellectual property, is called upon to become the hypostasis of the necessary change that provides us with the resources to definitively defeat the virus and its consequences.
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