Patent laws are fast evolving across the world, and nowhere more so than Asia. Emerging case laws and new legislation are helping shape stronger intellectual property laws for regional players
The covid-19 pandemic has dramatically transformed the way that we live, and continues to challenge our ability to adapt to change. There is no going back to how things were and we need to shift to sustainable alternative norms in the conduct of our daily lives. IP rights protection is not exempt from such a need to transform.
Shift to online environment
Even before the pandemic, Filipinos were heavy users of internet-based platforms such as social media and online shopping websites.
But as e-commerce becomes more pervasive, there is greater inducement for copycats to ride on the goodwill of established online platforms, products and brands.
In this regard, the Internet Transactions Bill, which is pending before the Philippine Senate, aims to make transactions safer, easier and convenient for sellers and consumers. Under the bill, the Director General of the Philippine Intellectual Property Office (IPOPHL) is given the power to issue orders directing the take-down of a website, app, social media account or other similar platforms if they are found to be in violation of the Philippine Intellectual Property Code.
Although often overlooked, at the core of e-commerce businesses are intangible assets such as brand equity, goodwill, and software or computer-implemented systems. Thus, even while the bill is pending, the IP code already provides technology and product owners the legal basis to prevent the unauthorized use of their intangible assets, as long as they are covered by various IP rights, including patents.
With the fast rate of obsolescence of online technologies, owners may be more inclined to focus on brand protection instead of patent protection. Nevertheless, for technologies that have wide-ranging applications, or those that are indispensable even with respect to updated versions, patent protection remains an effective strategy to prevent infringement.
Patent protection across fields
Aside from e-commerce, patent protection is equally important in other fields, particularly in the field of medicine or pharmaceuticals. As the race for finding a vaccine or cure for covid-19 intensifies, patent filings will increase from scientists and researchers. There is also an expected increase in patent filings in the fields of medical equipment and devices, as innovation is likewise critical in the areas of diagnostics, sanitation, protective equipment, and other medical devices.
In the context of the pandemic it must be noted that, under the IP code, public interest, in particular national security, nutrition, health or the development of other sectors is sufficient ground to grant a compulsory licence. Thus, the state will have an interest in ensuring that patent rights will not prevent access to vaccines and life-saving medicines.
As travel is restricted and social distancing has replaced in-person interactions, there will be a demand for more efficient online connectivity. Thus, there will be more innovations in the fields of communication technology such as telecommunications, video-conferencing and other wireless technologies. This may lead to more licensing opportunities with respect to standard essential patents (SEPs) relating to wireless technologies such as 5G.
The current situation has opened the gateway to more inventions relating to transportation. For example, there are increasing technologies designed to give consumers real-time updates on travel disruptions.
The Department of Science and Technology – Philippine Council for Industry, Energy and Emerging Technology Research and Development (DOST-PCIEERD) recently launched technologies developed by Filipino researchers to help manage the effects of the covid-19 pandemic, namely, a disinfection chamber, a tracking system for allocation of medical supplies, a remote-controlled robot that allows virtual communication between medical personnel and patients, and a system for tracking relief assistance to communities.
Innovations are not limited to those involving advanced technology. The DOST continues to support “grassroots technologies” or cost-effective technical solutions to local problems such as generating high-yield crops, prolonging the shelf life of certain food products, and producing various waste management products.
The shift to the new normal has also expedited the evolution of technology. With this, patent protection will become a very important tool to maintain control of how innovations are scaled up to reach a global market. While the market is increasingly borderless, patent protection is still territorial in nature. Thus, patent owners now have to be more mindful of the jurisdictions where they wish to secure patent rights.
The Association of Southeast Asian Nations (ASEAN) must speed up harmonization efforts to facilitate patent protection in the region. In this way, business owners will have more incentive to set up shop in the region. For its part, the IPOPHL acknowledges the risks brought about by the pandemic, and recognizes that the current situation has made it difficult to file new patent applications or comply with maintenance requirements in the usual way. The IPOPHL thus fast-tracked the adoption of online processes in almost all of its services.
IPOPHL online filing
While the IPOPHL had launched its online filing system even before the pandemic, it only recently transitioned to the exclusive use of electronic filing and payment procedures. New applications for patents, utility models and industrial designs to be filed from within Metro Manila shall be filed online through the IPOPHL filing system, the eDocfile for Patents, except those applications that exceed 250 pages. Other requests and submissions may likewise be filed online, such as annuity payments, appeals, requests for extension, recordals, responses, revivals, and submission of documents such as powers of attorney, amendments and other late-filed documents.
All pleadings and filings relating to: inter partes proceedings, which include petitions to cancel patents, utility models, or industrial designs, and petitions for compulsory licensing; and cases on IP rights violations, which include patent infringement suits, shall likewise be filed electronically via email.
20-22 July 2020
19 August 2020
23-26 July 2020
20 August 2020
27-29 July 2020
24 August 2020
30 July-2 August 2020
25 August 2020
3-5 August 2020
26 August 2020
6-9 August 2020
27 August 2020
10-12 August 2020
31 August 2020
13-15 August 2020
1 September 2020
16-18 August 2020
2 September 2020
Extension of deadlines
To accommodate patent applicants and registrants and allow them to comply with maintenance requirements despite, the IPOPHL has extended a series of deadlines. Recently, the IPOPHL has suspended receiving and cashiering services from 20 July 2020 to 18 August 2020, and deadlines falling between the dates have been extended (see table above).
The IPOPHL is closed on Fridays for disinfection, and deadlines falling on Fridays may be filed the next business day.
Scanned copies of documents
The IPOPHL now accepts scanned copies of required original documents, such as powers of attorney and certified true copies of priority documents. The originals, however, may still be required if questions arise as to their authenticity or due execution. Otherwise, scanned copies shall suffice, and there is no need to submit original documents. These scanned copies may likewise be submitted to the IPOPHL via the eDocfile for Patents.
Conduct of online hearings
The IPOPHL has also taken advantage of available digital communication media such as online video-conference platforms to conduct hearings, pre-trials, and trials for inter partes proceedings and cases on IP rights violations. The parties simply have to file a request with the IPOPHL via email for the conduct of the hearing via online video-conference. The parties may also present their witnesses during the online video-conference proceedings, and the hearing officer may promulgate decisions or orders through the same platform.
The IPOPHL has shown its adaptability in view of safety requirements. It has consistently taken advantage of available technologies to make transactions with the public easier and more efficient. Particularly the eDocfile has been very effective and convenient to users of the online system. In fact, the local IP community welcomes the adoption of the online filing system as the norm for IP rights protection, even after the pandemic ends.
CRUZ MARCELO & TENEFRANCIA
9th, 10th, 11th & 12th Floors, One Orion
11th Avenue corner University Parkway
Bonifacio Global City 1634
Metro Manila, Philippines
Tel: +63 2 8810 5858
Fax: +63 2 8810 3838
Email: [email protected]