Global IP Matrix - Issue 7

Intellectual Property amid
times of COVID-19:
a strategic view
Written by Laura Castillo Sepúlveda
Partner at Innventiva - Espacio Legal
www.innventivalegal.com
Humanity has been surprised by
a silent enemy whose smallness
was hidden by a pandemic that,
in less than five months, has
caused hundreds of deaths and
whose power of contagion has
alarmed populations around
the world. This challenger is the
COVID-19 pandemic, which
under the slogan ‘stay home’,
has transformed the economic,
social, and legal systems of all
nations, reaching a new world
order.
To face this challenge, scientists around the
world are creating vaccine formulas, trying
medications, building unconventional
respirators, and working towards any other
tool that may aid humanity in fighting this
battle. These ideas and inventions are part of
the solution to the pandemic and are linked to
Intellectual Property Rights (IPRs). Therefore,
this area of law is now more important than
ever. Furthermore, the increase in the use of
new technologies has simplified the exchange
of goods, services, and information, placing
IPRs at risk. Consequently, in these times, it is
more necessary than ever to use good strategies
to preserve, rescue, and protect IPRs.
This article looks for points of convergence
between the existing laws and the reformed
world order. Thus, it will expose that COVID
can represent great opportunities rather than
attacks on IPRs. Particularly, it will analyse
the defiances and opportunities the pandemic
entails for Intellectual Property (IP) practice in
three main fields: i) counterfeiting, ii) licence
agreements and iii) trade secrets.
I. Counterfeiting
products
Counterfeiting is the production or
distribution of goods without the permission
of its proprietor. Amid times of COVID-19,
counterfeiting is the consequence of i) the ease
in which international commerce can be done,
ii) the lack of strict customs revisions during
quarantine, and iii) the economic downturn
that makes people need cheaper products. This
illegal practice affects consumers; IPRs owners,
impeding them to receive the income of their
IP; and it also obstructs the tax collecting
of governments. In times of a pandemic,
counterfeiting of medicines, medical
equipment, as well as protection products, such
as masks and disinfectants could have adverse
effects on the health of consumers since they do
not follow the protocols of regulated products
and may have an altered expiration date or an
incorrect amount of active ingredients. In fact,
international organisations such as INTERPOL
and the World Customs Organisation have
reported an increase in the production and
distribution of essential counterfeit products
to deal with COVID-19.
www.gipmatrix.com
The criminality of these events is not in
doubt. The first solution would be to apply
strong customs measures to detect counterfeit
products, prosecute the counterfeiter, seize the
merchandise, and destroy it. However, in times
of a global crisis, the relevance of corporate
social responsibility (CSR) is currently being
observed. Specifically, the need for companies
to strike a balance between their IPRs and the
general interest: allowing easy and affordable
access to products that have become necessary
to —literally— survive. Thus, a convenient
solution would be not to enforce, but to grant
specific and royalty-free licence of use, for a
limited period of time.
Evidence of the above is the Open COVID
Pledge (OCP) by which the pledgor
compromises to share its IP (copyrights and/
or patents) to end and diminish COVID-19
pandemic. In this scenario, the pledgor
publishes a licence permitting others to use the
IP as described in the legal terms of the said
licence.
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