The IP-ologist: The Intellectual Property in a Pandemic

The Corona Virus Pandemic has had far reaching consequences which we are all aware of.  Below is a brief look at how COVID-19 has raised various issues relating to Intellectual Property. It is not intended to be a review of the most significant issues created by the pandemic, but rather a look at how intellectual property issues arise even in a time of global crises.  Hopefully businesses will be sufficiently aware of their IP in order to ensure that they can have a positive impact during the pandemic and a number of brands mentioned below have come up with innovative ways to contribute.

Patents

The importance of vaccine for Coronavirus is well known and would be the most significant step in tackling the virus. Any Vaccine would likely be patented and it is possible that patents already cover the equipment used in testing for Coronavirus.

Countries have already responded to this issue, noting that it would be incomprehensible in this time of crises for a vaccine to be available, but for use to be restricted on the basis of a patent.

Germany has passed emergency legislation to compliment existing provisions in German patent law which allow “competent authorities” (or third parties authorised by them) to make use of the patent on the basis of public interest purposes.

The UK may invoke “Crown use” provisions of patent law.  This exemption of the Patents Act 1977 allows others to make use of any patent rights without the prior agreement of the patent owner, to the extent they are for the services of the Crown. The UK government can also grant compulsory licences and it will be interesting to see if and when this step is taken (or whether it is publicised). A tested and proven vaccine is required first.

Trade Mark issues

The pandemic has had an impact on trade marks, with the overall number of registrations dropping worldwide during the lockdown period.  In contrast to this the number of “Corona” related trade mark registrations has increased (as have website domain registrations for Corona Virus or COVID), with some individuals seeking to take advantage of the crises.  

It will be interesting to see how Corona Beer responds to these registrations as there could be a dilution of the registered trade marks it has (to go along with the loss of revenue).  Brand association is an issue in this regard, with consumers sadly appearing to prefer other beers simply because of the virus connotations.

Other brands have adopted social distancing in their logos in attempts to take advantage of the lockdown situation.  Audi released a logo of four separate rings.  Volkswagen has followed suit with its VW logo and Coca Cola has released a version of its iconic name with the letters separated.

The virus has prompted a rise in the availability of related counterfeit products. Operation Pangea, Interpol’s global pharmaceutical crime fighting unit recently made over 100 arrests across 90 countries and the seizure of dangerous pharmaceuticals worth over £11 million including 34,000 substandard surgical marks.

Perhaps now more than ever, there is an importance in understanding what is the genuine article and what is not. Registered trade marks (and the related enforcement available) are an important tool for that.  Consumers should understand that counterfeit can mean dangerous, counterfeit products do not have the same quality control in their production process and this is true from pharmaceuticals to fashion.

Design Rights

One production industry which is seeking to overcome the various issues of quality control is 3D printing. 3D printers are being used to build parts for PPE including face shield clips, ear protecters for mask wearers and even valves for respirators.  3D printing in this way would usually raise issues of design rights.  Whether a registered or unregistered design have been copied and the sharing of CAD files are issues that should be considered.

A notable example comes from an Italian hospital. In order to overcome a shortage of hospital C-PAP masks for sub-intensive therapy (which was emerging as a concrete problem linked to the spread of COVID-19) Isinnova took a snorkel mask and introduced a 3D printed valve.  Decathlon provided the Easybreath mask, as well as CAD drawings of the mask.  A new component was added to connect to the ventilator called a Charlotte valve and this was created using 3D printing.  The link value was urgently patented, but remains free to use so that all hospitals can benefit from it (see above on patents). Usually this could raise issues of exhaustion of intellectual property rights with the repurposing of such equipment in this way.

Prusa has shared files for a face shield design and Protolabs has produced a variety of products, including swabs for COVID tests. Interestingly, various door handle attachments have been made available in order to reduce the level of physical contact required to open it.  Door handles in hospitals and public spaces are hotspots for the spreading of viruses and these small additions allow the door to be opened with an elbow.

These efforts have been taken seriously and the European Association for Additive Manufacturing (CECIMO) responded to a request from the European Commission – members have been asked whether they can produce medical equipment.  To be part of this initiative please contact Filip Geerts, CECIMO Director General (filip.geerts@cecimo.eu) or Vincenzo Belletti, Policy Innovation Manager (vincenzo.belletti@cecimo.eu).

The intellectual property implications have not been lost on people. Naomi ‘SexyCyborg’ Wu, a prominent technology YouTuber from Shenzhen, China has made an offer to face IP lawsuits on behalf of clinicians in China who 3D print patented components for respirators.

Repurposed Equipment

The fashion industry has responded to COVID with many brands repurposing factories to provide masks and other protective wear.  LVMH was very quick to provide PPE.  Guerlain, Parfums Christian Dior and Parfums Givenchy all retooled their productions lines to make hydro alcoholic gel and these have been distributed to numerous hospitals in Paris.  But LVMH actually went further than this and has obtained respirators and serology tests, it has delivered disposable or washable gowns and organised and funded the import of over 40 million face masks.

The repurposing of equipment has also been undertaken in the drinks industry closer to home.  A notable example being Old Bakery Gin which has repurposed its Gin production and distilling process to craft alcohol hand sanitiser.  The various steps in the process can be seen on their social media accounts.

Similarly Isabel Manns, the London fashion start up, has shown that designer face masks are the perfect option to choose so as not to take supplies away from the NHS.  These masks are sustainable as they are made from off cut fabric and 100% of the proceeds will go the NHS (they were also mentioned in Vogue!).

Copyright

Vogue also had a recent photoshoot that raised some interesting questions about copyright. As more and more business grapple with virtual meetings and events, Bella Hadid took part in photoshoot for Vogue Italia’s April Issue purportedly shot and styled entirely via FaceTime.  Photographer Brianna Capozzi and stylist Haley Wollens made it happen without being physically present.

Although unlikely to arise in this case, this situation of a remote photoshoot could raise questions of ownership of copyright on the basis that Bella Hadid would have been the one manipulating the camera lens angle to produce the shot before the photo was taken, even if at the direction of Capozzi.  This really could be a situation in which there is a case for joint authorship in the copyright of the photos (something Gigi Hadid has claimed previously in relation to paparazzi photos).

Assuming English law applied (which it doesn’t in this case), the recent case on joint authorship of Kogan v Martin would likely be considered.  In that case it was repeated that asking the question of who moved the pen (for a literary or dramatic work) was not sufficient when determining the question of authorship.  In this case, both sides could argue that they had an authorial contribution, with Hadid moving the lens and arranging the furniture (with the assistance of her friend Lauren Perez).  Capozzi and Wollens could similarly argue that given their instructions and preparation undertaken which included a fitting and testing poses, they have made sufficient authorial contributions.

It would be interesting to see if photoshoots going virtual during the lockdown causes parties to consider authorship given the more active role required of the model.

Separately, the Copyright Licensing Agency also recently relaxed its licensing scheme for educational use with digital access to work becoming more and more important as students are learning from lockdown. This is a welcome step to assist those now learning from home.

Database rights

A final note on database rights. The availability of free resources is a powerful tool for combatting Coronavirus and this is even true when it comes to data.  In a move apparently forgoing any database right, datasets are being made available for app development on a free ATLAS service by The John Hopkins University in order to enable businesses to track the various trends of cases and fatalities

It is good to see so many businesses responding to COVID-19 in such innovative ways and foregoing any intellectual property rights to assist others in tackling the crisis.

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