Impact of Covid-19 on IP rights protection

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Divina Ilas-Panganiban
Quisumbing Torres’ Intellectual Property Practice Group, Manila
Divina.Ilas-Panganiban@quisumbingtorres.com

Reena Mitra-Ventanilla
Quisumbing Torres’ Intellectual Property Practice Group, Manila 
Reena.Mitra-Ventanilla@quisumbingtorres.com

Neonette E Pascual
Quisumbing Torres’ Intellectual Property Practice Group, Manila
Neonette.Pascual@quisumbingtorres.com

In response to the growing number of Covid-19 cases in the Philippines, President Rodrigo Duterte declared a state of public health emergency on 9 March 2020, which was followed by a declaration placing the island of Luzon under enhanced community quarantine (ECQ) a week later. Since then, with the recommendations of the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF-EID), various parts of the country have been placed under different forms of community quarantine, depending on the number of Covid-19 cases and the trend of the pandemic in each area. As a result, the operations and services rendered by public and private industries and institutions have been severely limited, if not completely halted.

Considering that access to courts and relevant regulatory bodies is an essential part of gaining Intellectual Property (IP) protection, the measures undertaken by the Government to address the outbreak of Covid-19 severely limited the remedies available to IP owners for protecting and enforcing their rights. To make matters worse for IP owners, the pandemic has resulted in arise in IP rights infringement, particularly in consumer goods and entertainment media. In fact, the National Committee on Intellectual Property Rights (NCIPR) has issued a warning against counterfeit products circulating in the market, especially against counterfeit masks and medicine, as well against rising cases of online piracy.

Limited access to the courts and the IPOPHL

The Supreme Court issued administrative circulars to address the effects of the different forms of community quarantine on court operations and the periods for the filing of pleadings and other court submissions. During the ECQ period, all hearings and court actions in the ECQ areas were suspended, except for urgent matters. The courts located in the ECQ areas were physically closed and the due dates for the filing of pleadings and other court submissions were extended, although electronic filings were permissible. Guidelines for courts in areas under Modified Enhanced Community Quarantine (MECQ) and General Community Quarantine (GCQ) were subsequently released, easing up on some of the initial restrictions under the previous guidelines.

The Intellectual Property Office of the Philippines (IPOPHL) issued Memorandum Circular No 2020-006 on 16 March 2020, clarifying its earlier pronouncements as to services that can be performed by the IPOPHL in light of stringent social distancing measures and the ECQ. The IPOPHL adopted a work-from-home arrangement and hearings, which initially included mediations, were suspended. While new applications for patents, utility models, industrial designs and trademarks may be filed online through the IPOPHL electronic filing system, the processing of the same would only commence upon the resumption of work. It was later clarified (in a subsequent issuance) that for inventions, utility models, industrial designs and trademarks claiming priority date, the IPOPHL's online filing system must be used to comply with the prescribed period for claiming priority. In addition, the documentary receiving sections of the IPOPHIL were closed and the filing of written communications was delayed. The deadlines to submit papers, pleadings and other documents, and the payment of fees, were also extended. The limited extent of the services provided by the IPOPHL during the period of community quarantine, while ultimately necessary, nevertheless resulted in a slowdown in the activities essential for IP protection and enforcement.

The IPOPHL later released Memorandum Circular No 2020-012, allowing for the conduct of mediation through online meetings or conferences, subject to the agreement of the parties involved. On 16 May 2020, the National Capital Region was then placed under MECQ and, in response to this, the IPOPHL released guidelines that further adjusted the details of the previous issuances and the relevant  extensions for submissions of papers, pleadings, and other documents and the payment of fees.

Promoting the processing of applications for personal protective equipment, medical/health care equipment/devices and pharmaceutical products

Given the urgency of the situation, the IPOPHL issued Memorandum Circular No 2020-10 on the deadlines for the filing of written Third Party Observation (TPO) for Invention and Adverse Information (IAI), on utility model and industrial design applications. Moreover, the IPOPHL circular specified shorter deadlines to assist with the processing of applications for personal protective equipment (PPE), medical/health care equipment/devices and pharmaceutical products, which are clearly essential goods during the pandemic.

Preventing the counterfeiting of medical/health equipment, ‘falsified medicine’ and the rise of piracy during the quarantine period

The limited supply of medical/health products and equipment, together with unprecedented high demand for these essential goods, present a high risk of counterfeiting activities. The NCIPR released a statement^[1] indicating that, ‘the gaping hole between supply and demand all over the world is also an easy entry point for counterfeiters’ and other than ‘…masks and other personal protection gears, the team has also flagged pharmaceuticals, hygiene products, food, and beverages as the top categories likely to attract significant counterfeiting activities due to the surge of demand for these products.’ With a particular emphasis on how reporting counterfeit trade may save lives, the NCIPR calls on the public to remain vigilant and not to hesitate in sending a report on speculated counterfeit products to the IPOPHL.

Increased vigilance against counterfeiting becomes all the more relevant considering that in the 2019 report of the United Nations Office on Drugs and Crime (UNODC), entitled ‘Transnational Organized Crime in Southeast Asia: Evolution, Growth and Impact’,^[2] the Philippines is reported to have the highest incidence of ‘falsified medicines’ in Southeast Asia. On 1 May 2020, the United States Trade Representative (USTR) also acknowledged the Philippines as one of the leading sources of counterfeit drugs.^[3] Given that the number of cases of Covid-19 in the Philippines has been steadily increasing, the prevalence of counterfeit products on the market, especially pharmaceutical products, poses a grave threat to public health.

In addition, the NCIPR also warns of a rise in the number of complaints involving piracy since the outset of quarantine. According to the March 2020 reports of the IPOPHL’s Enforcement Office (IEO), 19 per cent of the complaints received involved piracy – specifically, the illegal streaming and illegal downloading of movies.

Moving forward

The Covid-19 pandemic has, in itself, brought about numerous challenges and the proliferation of counterfeit health and medical equipment, as well as substandard and unsafe pharmaceutical products, further inhibiting the Philippines’ path to recovery. As government bodies transition into the ‘New Normal’, it is likely that there will be an upswing in patent and trademark prosecution in the near future. The importance of intellectual property, and the need for its protection, take on an elevated social significance during this time, which calls for creative, effective and immediate solutions to an unprecedented global crisis.