DISASTROUS SIGNS FOR THE GLOBAL INTELLECTUAL PROPERTY MARKET IN A Covid-19 WORLD

Categories: Asma Raza

The effects of Covid-19 were felt all over the world because many of the world’s major economies were blocked in March. The intellectual property sector was no exception. Changes in daily work habits and workflows in major intellectual property offices and courts have forced rights holders to new ways of interacting with colleagues, doing business, and working on their clients’ affairs.

To start with, many easily adapted to household chores. “Being a digital native who only kept a few paper files before the pandemic, our VPN and conference call are a good substitute for our knowledge of the office,” said Christopher Loh, Venable Outpost patent attorney In New York.

This sentiment is accumulated by those who prepare, submit and then pasteurize patent applications. “The accusation is susceptible to telecommuting agreements in many ways because most of our work requires someone to complete the project to send it to someone else,” said Ahsan Shaikh, a McDermott Will & Emery partner in the United States.

In the lighter moments, this radical review has made IP a new window for the lives of others. “You can see children or pets in video calls when people work in the dining room or at home,” laughs Heath Hoglund, vice president of intellectual property and Dolby Standards. “Noise-canceling headphones are required in this environment!” Loh explains when she talks about juggling her life as contentious in the new role of a parent who stays at home.

The new personal

But this new way of working has its obvious disadvantages. Remote work deprives people of accidental meetings that characterize office life and which can play such an important role, for example, in completing the disclosure of the invention or in following the next phase of the controversial fight. Intellectual property is based on internal relations with colleagues or external with clients and service providers. They are much easier to activate or deepen through personal interaction.

To find out how corporate practices can change as infections fall, we can turn to China. When the threat of Covid-19 disappeared, lawyers in private practice and domestic workers began to return to their jobs, although this is not a return to old habits.

“Beijing should be normal, but not quite normal,” said He Jing, senior consultant at Anjie’s law firm. “Everyone is always very vigilant to prevent the second wave of the epidemic.”

One aspect of the new standard is government guidelines to avoid large meetings for employers. “We can accept a maximum of 50% of those working in the office, but in reality only a third of people come now,” he explains. He said a colleague wanted to take customers from Shenzhen to the Beijing office, but the building administration prevented him from doing so.

Go to (virtual) court

Many of our respondents positively assess the alignment of courts and intellectual property bodies. The hearings concerned conference calls in the United States, CAFC, and even the Supreme Court. They continued to listen to oral discussions from afar.

“The [British] courts have adapted very well,” said Dominic Adair, partner of Bristows. “They quickly changed their business practices and published guidelines for remote listening.” Some of the more complex cases involving several foreign witnesses are current, but most are pending. “I took part in a hearing with Judge Birss on Skype and it worked very well,” said Adair.

However, the physical closure of courts has a negative impact on the trial with an important element of oral defense, Loh comments: “Arguing over the phone is not the same.”

Others, including Oswin Ridderbusch and Alexa von Uexküll from Vossius & Partner in Germany, agree to this request. Although they support EPO’s use of videoconferencing for oral exams and procedures, they argue that this approach has drawbacks. “Remote procedures have not been popular among EPOs in the past,” says Ridderbusch. “Patent specialists are afraid that they will not be able to defend their clients like a personal interview.”

They also fear that distant target groups could become the new standard in the EPO. These views reflect those of the European Patent Institute (EPO), which wrote to EPO chief António Campinos at the end of March, demanding that current measures “do not become permanent without much more extensive evidence of a possible technical solution” long-term. “Prolonged use of video conferencing can discriminate against websites in countries where internet service is slow or unreliable,” suggests EPI President Francis Leyder.

Von Uexküll also has reservations about how the European Agency has dealt with this situation. Despite being asked to postpone scheduled procedures, he received a number of letters in March confirming that the trial would take place before it was finally canceled. “It was very clear that the pandemic was already serious and was predicted long before the trial was canceled,” he says. “In my opinion, the response was satisfactory. The EPO Board of Appeal reacted much faster.”

In particular, concerns expressed by European citizens highlight the question of how long the global intellectual property system can withstand the long-term effects of a pandemic. Even if there are signs of easing restrictions on both sides of the Atlantic, it is still unclear when IP agencies and courts can return to normal.

In China, some hearings are still in person, although the Beijing Intellectual Property Court has switched to online hearings in some administrative dispute resolution proceedings (e.g. appeals against CNIPA). Social distance restrictions also mean that traveling to court outside Beijing takes longer.

However, he noted that judges and litigants in general were willing to be flexible and even postpone cases as needed: “In general, hearings can continue if both parties and their lawyers are already present in the same city and want a physical Audition, but everyone else is late.”

Going up or down?

But was it the decision that made the decision of the political crisis? The intellectual rights that exist after cutting intellectual property budgets belong to the industry giant. “After determining that intellectual property rights are kept to a minimum, the best teams will listen to their unverified intellectual property department to listen to the intellectual property again,” said Kenichi Nagasawa, Canon’s head of intellectual property. . “I regret that this year the restrictions on patent applications have been lifted, in a personal year when this is not possible, even if covid-19 has disappeared.” That is why there is access to IP computers and their administrators.

This is why most internal PI departments are cost centers for which there are many excellent laws that include budget cuts. Shaikh predicts that there will be a general market crisis, that companies will be ready or will be able to hire non-patent attorneys and that fewer patents will be obtained. “The clients I decided to work with, the software clients, didn’t really change their registration strategies because they weren’t listened to.” “But if it will be and when it will be, we will be sincerely seen.”

Given this uncertainty, stakeholders can console themselves with the idea that intellectual property is viewed as a countercyclical good that works relatively well during a recession. According to Adair, it is well positioned to withstand the current crisis, as it is not tied to particular physical properties. “This greatly facilitates the remote management of these assets,” he says, noting that there may be an increase in the perception of intellectual property among the population, as people appreciate the role of innovation in the fight against covines19.

Any improvement in intellectual property as an asset class is likely to be most felt by those working in the licensing industry. Dongsuk Bae, head of the patent sector at Intellectual Discovery, a recently privatized state patent fund in South Korea, notes that “we have found that intellectual property companies are attracting more investor attention.” However, he noted one of his concerns about finding a deal that could be more difficult without the ability to travel and connect.

Others believe that the pressure on the company’s earnings could lead to more business transactions, as the focus is on monetizing patent portfolios or selling assets.

However, an avalanche of market activity could only depress the IP values ​​they have endured in recent years.

“I think we will see a devaluation of intellectual property,” predicts Garrard Beeney, a partner at Sullivan & Cromwell. “Some people have to sell their products for cash because they are cash poor and the licensing programs themselves do not receive the revenue that they would otherwise have just because of the economic impact.”

While IP managers have made a remarkably smooth transition to the new normal, the long-term outlook remains deep uncertainty.

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