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Navigating the impact of COVID-19

How to manage intellectual property risk

COVID-19 will not be stopped without IP.

As policymakers around the world seek to speed up access to diagnostic methods, vaccines and antivirals, the right of exclusivity that IP, particularly patents, gives to innovators working on potential cures will be at risk. There will be a strong push to limit exclusivity in times of crisis.

IP owners will have to be pro-active, in particular in the medical and pharmaceutical industries, to protect their IP portfolio and mitigate their exposure.

A number of IP-related issues arise in this context:

  • Limitations on the grant and enforcement of IP rights: for example, compulsory licences for vaccines and drugs due to an imminent threat to public health and the public interest in affordable access to certain medicines.
  • Ownership in publicly funded COVID-19 vaccines: a number of governments have committed substantial resources to fund the development of a new COVID-19 vaccine. Who will own any output? Who will have licence rights? How will this affect pricing?
  • Abuse of platforms: technology companies need to ensure that their platforms are not being used to disseminate false or even dangerous information about COVID-19. Some appear to be rejecting COVID-19 apps that do not derive from health organisations, while others seem to have banned ads for anti-COVID-19 products.
  • Counterfeiting: producers of medicines and personal protective equipment (eg face masks) should to be vigilant about IP infringement and the need to enforce their rights due to rising demand for their products, which could trigger an increase in the production and distribution of counterfeit versions.
  • IP deadlines: Although some IP offices like the EUIPO have announced that they will extend certain time-limits, IP owners would be well advised to adjust their IP monitoring/renewal system to address the exceptional situation caused by COVID-19, which significantly increases the risk of missed deadlines.
  • Trademarks: associated with COVID-19 might be affected in the wake of a global crisis.
  • Know-how / Trade secrets: As businesses are forced to swiftly shift large parts of their workforce to working remotely from home, the protection of critical know-how and trade secrets becomes even more difficult. Changing the ways to work in times of crisis – to home office, on employees' own devices, by using new technologies often rolled out with little time for testing – makes the business more vulnerable to cyber attacks and trade secret theft. Businesses need to review and adapt their protective measures to the new circumstances to avoid increased risks of trade secret misappropriation.

Get in touch

If you would like to discuss these issues in more detail, please speak to your usual Freshfields contact or one of the lawyers listed below who can direct your query.

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