Innovation and IP in

These are times that no-one will forget. But how each person will remember them will be strikingly different depending on their circumstances – except that all will remember the commitment given by those on the front line of protecting people from the impact of Covid-19.

My heartfelt gratitude goes to those in the National Health Service, those caring in the community, in essential shops and other essential services from collecting our rubbish to running the country, as well as to those who have to keep the wheels of commerce functioning, and who have been willing to expose themselves to risk to keep life for the rest of us reasonably functional. My sympathy goes to those not fortunate enough to have space and company to allow them to manage without continuing challenges. I believe the same is felt by our largely fortunate profession many of whom are able to continue working at home, and I hope they are able to lend support both to the less fortunate in our profession and to the wider community in moving forward.

Business as usual? It is easy to forget while this crisis is on, that there is still the ordinary day job – significantly transformed – and the work still has to be done. The broadcast media is saturated with Covid news, mostly UK Covid news – and Covid politics. Little else manages to creep around the edges. Of course making adjustments to protect a business from the impact of Covid-19 is essential. I was seconded as general counsel to the Science Museum when the crisis surfaced but, if it is still possible to do it, the day job still has to go on. That is whether it is making

Innovation and IP in challenging times: a moral dilemma? Alasdair Poore

widgets or selling food or delivering healthcare or teaching or, in the case of IP professionals, advising on and protecting intellectual property. And that includes in respect of innovations driven by the Covid crisis.

One effect of Covid-19 is that society is facing very significant challenges over a very short period of time. This is a major driver for innovation, in terms of putting new ideas into practice or dusting off old ideas and putting them into play to meet the demands of the crisis – on a larger scale or just because preventing the spread of Covid-19. Many of the challenges are ones related to operating in an environment adapted to address the risk of transmission of the disease. One example is videoconferencing, and most are agreed that the experience of widespread use of videoconferencing is likely to have a lasting impact on many if not all businesses – an impact that will be relevant as far afield as climate change, as many businesses are expected to trim their travel budgets with effective videoconferencing 2 .

There is a considerable amount that IP practitioners can do to help businesses confront the issues of protection.

more capacity is needed. We have already seen the Ventilator Challenge 1 with some exciting ideas put forward and some older processes re-purposed. We have seen the challenges in the life sciences field: testing, evaluation of old treatments in the new setting, and the development of new treatments, to name a few, all at a pace, which was unthinkable only a few months ago. People in their backrooms with old sewing machines, to their front rooms filled with 3D printers, to major businesses, all have devoted their time and skills to designing and making face masks and other PPE.

Challenges are not restricted to ones directly related to treating or

Online meetings Until very recently video conferencing was something that many businesses used internally, but when it came to dealings with outsiders or multiple parties there was a marked degree of trepidation. All too often they had experiences of not getting it to work or breakdowns in situ. Now the necessity of working at a distance has transformed the way we work, with Zoom, Skype, Microsoft Teams and more. The change is illustrated well by two of my recent experiences.

Last year I was at a court hearing at which the other party requested to attend by telephone. The applicant was allegedly bedridden. When it came to the hearing,

this was conducted in open court. The judge was sitting high on a raised dais. The standard provision was a speaker phone, on the desk several feet down, where the clerk was seated. When the hearing started it was clear that the judge had difficulty in hearing and equally important, being heard. There was a solution: find a couple of cardboard boxes, place these on the clerk’s desk in front of the judge and balance the phone, somewhat precariously, on top of the boxes. The same arrangement was repeated at the next hearing some weeks later. There was always a feeling that the phone was about to fall off its perch and crash to the floor. In fact, the worst that happened was that the applicant could not always hear some of the Judge’s observations that he did not want to hear. Of course more sophisticated video conferencing for courts (as it is in the IPO) was available even then, and could be reasonably effective – it just was not there when it was required.

Last week, in contrast, during lockdown, I attended a hearing before the appointed person in a trade mark appeal – of course the IPO is, in any event, much more familiar with the use of videoconferencing. This hearing involved parties and their representatives and the appointed person at seven different locations. Although not entirely free from issues – my images of counsel for the other party froze for some time, maybe as a reaction to what she was saying, and one participant turned off their video when not speaking, as they had already used up all their broadband capital at home for that day, against competing family interests – there was little hesitation in adopting this approach.

Since lockdown we have seen a flood of webinars being provided, training courses put online, and press briefings and comedy shows delivered (and created) in the same way. Conference providers have moved to delivering virtual events, such as the recent AIPLA meeting 3 , universities have set up remote examination provision 4 , and the EPO is talking of making hearings including opposition hearings 5 by videoconferencing the default. There is currently discussion with the Patent Examinations Board on provision of exams online.

Solutions and rewards In many cases, the starting point of these innovations has been a necessity to continue business. In other cases, it has been a real desire to contribute something to solving the problem of Covid-19. AstraZeneca has promised to supply the vaccine it is currently contracted to develop, make and market, on a non-profit basis, at least for the duration of the pandemic 6 . Designs for face masks have been placed in the public domain through open source licensing; and performances of artistic works are streamed free of charge. However, it is clear that at least some of the creators or providers will want, or hope for (and deserve), a reward in due course for the investments they have made and the risks that they have taken. It is also clear that some – particularly in the marketing field – are already trying to take advantage of the new environment to reap their reward.

Personal protection is a further driver for innovation. Shops have been quick to introduce floor marking to assist in customers working out how far to separate themselves (and to act as a constant reminder for such separation – and to show that they are good places for customers). In Domino Park in New York 7 , suitably sized circles were chalked on the grass as socially distanced picnic spots. And a German restaurant provided customers a hat with whiskers made from pool noodles to encourage visitors to keep their distance 8 . There will be more technically innovative solutions being sought as well: in relation to testing, vaccines and drug treatments, of protective wear, for assisting in social distancing and delivery of services at a distance, in modelling – to identify infection hot spots and potential spread, or social behaviour which may impact on spread – or to understand how people use the physical space around them, to design safer environments for shops, schools and open spaces.

Patent protection All of which means that there is a considerable amount that IP practitioners can do to help businesses confront the issues of protection – whether that is because a business in a hurry has adopted a solution which is protected by a third party, or because a business with an idea wants to recover some of its investment in developing that idea and putting it on the market. It is clear that there is the potential for obtaining IP protection (or for there to be existing IP protection) in relation to many of the innovations which could arise.

Not that the nature and effectiveness of IP protection is a trivial question in the context of many of the innovations that might be made. This is likely to present some interesting challenges in the intellectual property field. From a patent perspective, many of the quick solutions are ones that will hardly qualify as inventive – only the exigencies of the current emergency pushed them forward as contenders at the time. But now that they have market share there is some real value in them – so of course that might turn it into a brand protection issue.

Some of the more interesting innovations will be in the field of modelling and machine learning, creating challenges for intellectual property offices (and professionals and their clients) as to whether they are eligible subject matter or whether the boundaries of eligible protection, such as in relation to modelling human behaviour, should be redrawn given the undoubted benefit of such modelling. There will be a possible resurgence of the question of whether a re-purposed drug, which is an obvious contender for trialling for treatment of Covid-19, can benefit from a second medical use protection. And many more difficult patent issues. So in addition to the ethical question of whether a business should profit from the pandemic, there will also be practical questions as to the value to be invested in what may be marginal intellectual property rights.

Other IP There will also of course be other intellectual property – copyright, design rights and confidentiality, and performance rights. They may be relevant, and having a good understanding of the interaction between the different rights will be important to provide practical advice to businesses. One example might be in relation to modelling: there may be an element of confidentiality which can be maintained in the face of real difficulty in securing practically useful patent protection, and this may be used in preference (or in addition) to patent protection. But understanding the privacy issues, where modelling or AI tools affect decisions about individuals, will be important, and that may mean that database rights become more significant in place of confidentiality (but not of course in the USA). Similarly, there is plenty of scope for disputes over the scope and subsistence of design rights in respect of designs that are unsophisticated functional developments as can be seen from the recent CJEU decision in the Cofemel case 9 .

Finally, but by no means the least important, there will be the potential for brand protection (and wherever there is brand protection, for brand abuse). There are already businesses using the Covid crisis to build their brand – in many cases in a respectable way, by showing that they are socially responsible. And there are many smaller businesses, which have taken the opportunity to protect themselves during the crisis by establishing their profile with a new business model – such as local food delivery. And there may also be those businesses that seek to take advantage of the situation and exploit other organisations’ brands while those organisations have their attention diverted elsewhere.

A moral dilemma? Is there a moral issue here? Yes and no: it is unquestionably better to discuss with a client the potential for protection and to give them the means to make a decision on the moral application of those tools. IP practitioners should not be reluctant to discuss potential protection with businesses, even if that might seem to be profiting from the awful incidence of Covid-19. As with open source licensing (and even with the patent protection obtained by major philanthropic organisations like the Wellcome Trust), it is better to have the rights and apply them in a socially responsible way than not to have them and leave the potential for others to exploit the position. At least IP practitioners should provide businesses with the means for making those decisions.

The message therefore, as proclaimed by the government (but with a somewhat different direction) is be alert. For IP practitioners there are many opportunities to help clients in a confusing and confused situation. The IP profession has a duty to ensure that businesses are aware of the opportunity and value of IP, and are in a position also to provide the background that enables businesses to assess their approach to social and ethical issues arising from the use of any IP. Oxford University made it clear that that necessitated guaranteed availability of a new vaccine to low- and mediumincome countries 10 , and many universities and philanthropic funders would expect the same. Commercially businesses may approach the issues in a different direction or seek to address their corporate social responsibility in a different way.

Alasdair Poore

Notes and references

1. www.ventilatorchallengeuk.com; “The government has today announced it will continue to support 11 devices in its Ventilator Challenge, as part of the drive to increase ventilator supply and protect the NHS.” (28 April 2020) www.gov.uk/government/news/ update-on-the-ventilator-challenge 2. “New working practices could lead to permanent change” (Schroders, with an investor health warning): www.schroders.com/en/uk/assetmanager/insights/markets/how-coronavirus-could-change-our-workinglives-and-the-climate/; a rather more pessimistic view is given by Tamsin Edwards from King’s College London – www.kcl.ac.uk/whatcovid-19-is-teaching-us-about-climate-change 3. www.aipla.org/SM20 4. www.cam.ac.uk/coronavirus/students/assessment 5. www.epo.org/law-practice/legal-texts/official-journal/2020/04/a41. html; “The decision of the EPO to start holding videoconferences as the standard way of conducting oral proceedings in examination and opposition proceedings is facing heavy criticism.” Kluwer Patent Blog: http://patentblog.kluweriplaw.com/2020/04/29/opposition-againstepo-plan-to-hold-oral-proceedings-before-examining-divisions-byvideoconference/?doing_wp_cron=1590587554.8582999706268310546875

6. www.ox.ac.uk/news/2020-04-30-landmark-partnershipannounced-development-covid-19-vaccine 7. www.bbc.co.uk/news/in-pictures-52746584 8. www.dailymail.co.uk/video/germany/video-2172746/Video-Cafemakes-patrons-wear-pool-noodle-hats-enforce-distancing.html 9. Cofemel – Sociedade de Vestuário SA v G-Star Raw CV – www.bailii.org/eu/cases/EUECJ/2019/C68317.html 10.“Under the new agreement, as well as providing UK access as early as possible if the vaccine candidate is successful, AstraZeneca will work with global partners on the international distribution of the vaccine, particularly working to make it available and accessible for low- and medium-income countries.” www.ox.ac.uk/news/2020-04-30- landmark-partnership-announced-development-covid-19-vaccine; “AstraZeneca is advancing its ongoing response to address the unprecedented challenges of Covid-19, collaborating with a number of countries and multilateral organisations to make the University of Oxford’s vaccine widely accessible around the world in an equitable manner.” www.astrazeneca.com/media-centre/press-releases/2020/ astrazeneca-advances-response-to-global-covid-19-challenge-as-itreceives-first-commitments-for-oxfords-potential-new-vaccine.html