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By Caroline Wanjiru Muchiri

Introduction

What began as a virus solely affecting residents of Wuhan, China in December 2019 has substantially spread and is now a global pandemic according to the World Health Organisation (WHO). The virus commonly referred to as COVID-19 has had tragic consequences leaving people, in thousands, dead thousands infected. WHO is keeping tabs on the situation by providing a situational report. See the reported cases here.

In Kenya, the Ministry of Health continue to ardently conduct tests, treat and otherwise manage the impact of the virus. Additionally, the President outlined various actions to be taken during this crisis including controlled movement to and from the affected areas mainly metropolitan areas. Other recommended measures include social distancing, washing hands and staying home. These measures require social and behavioural changes from the people.

Below, we take note of various contributions by intellectual property during these times and particularly in influencing the people’s response to the crisis. These measures are mainly by private persons as IP is a private right.

Patents

Patent rights provide a twenty-year protection over new inventions which involve an inventive step and are industrially applicable. This protection may extend to improvements to the inventions. Currently, most of the required medical supplies are subject to patent rights hence their exploitation requires the authority of the owners which has a cost implication. Some owners have, in various ways, voluntarily given up their patent rights to medical supplies to help the war against the pandemic. The health technology company Medtronic Inc for instance, has offered its ventilator designs freely for commercial use by anyone who has capacity to produce. By limiting access to those with capacity the company can monitor the use of their designs and more importantly for quality control of the product.

It’s important to note that patent rights cover commercial or industrial use only and do not extend to acts done in scientific research. This would be the case for clinical trials being carried out on existing drugs such as chloroquine and Remdesivir-owned by Gilead Sciences Inc,  to test if they can be a cure for COVID19. However, should the results of these efforts be viable, they cannot be commercially availed without the authority of the respective patent owners.

The presence of patent rights for pharmaceutical products has led to various calls and concerns around the world on their access especially during this crisis. Articles from all over the world,  including at CIPIT*[1], have recommended invoking Article 31 of the TRIPS Agreement by affected countries. We shall revisit Article 31 in a different post.

Other efforts include a pledge by IP owners to avail their inventions free of charge for use in ending the pandemic and minimise the impact of the disease. The organisations making the pledge are publicly committing not to claim their IP rights in their inventions during the crisis.

Utility Models (UMs)

Utility Models are patent like ten-year long rights that are new and industrially applicable. The inventions do not need to have inventive step but they have to be new. This is often the most suited protection for creatively fabricated works or innovations with commercial or industrial use.

The most prominent innovation Kenya has recorded is the Tiba Vent by Kenyatta University. Tiba Vent is a computer-controlled ventilator that assists doctors monitor the oxygen concentration the machine pumps to a patient’s lungs. As an innovation made within the confines of a University, the Tiba Vent will be governed by the School’s IP policy

Industrial Designs

Industrial designs are concerned with the physical appearance of a product.[2] They cover the special appearance of a product which may consist of a composition of lines, colours or any three dimensional form. This would include new patterns, designs, three dimensional shapes, product appearance etc.

In current times, industrial designs would cover any new shapes, designs and physical appearance of the various personal protective gear in use. This would include the different variations of face masks such as the cloth, branded, clear masks etc.

Use of Trademarks

Trademarks have various functions. They are badges of origin, assurance of quality, help visualise the product or service in the minds of consumers and are an important source of brand loyalty amongst others. All combined, these functions create a force behind the trademarks enabling them to convince consumers to buy, invest and or otherwise spend their resources on the associated products. This force is being redirected to assisting change the human behaviour in the fight against the crisis.

Various brand owners have redesigned and innovatively varied their existing brands in a manner that supports the human behaviour to support the fight against Covid19. The ‘new logos’ are still similar to the existing ones save that there is an identifiable component attributable to measures fighting Covid19.  Examples include vehicle manufacturers’ Volkswagen and Mercedes Benz who have introduced ‘social distancing’ between the elements of their trademarks. See CNN Business.

Copyright and Related Rights

Copyright covers a wide variety of works resulting from the creations of the mind. In Kenya, copyright covers various subjects including literally works, dramatic, musical, artistic works, sound and film recordings, broadcast rights amongst others.

Copyright related responses to the pandemic are numerous and a frequent occurrence compared to other rights. Most of them are the source of entertainment especially now then physical movements are highly discouraged. The images or photographs; creative short videos; renditions of existing songs; the memes; new emojis; dramatic works; public performances by private persons; creative compilation of these videos etc are all representative of copyrightable works. Considering the call for staying home, these works have been released on the online public platforms such as YouTube, Facebook, Instagram etc. This make the works easily shareable and in the advent of technology, easily copied, more often than not, without attribution to the copyright owners. Whereas some copyright owners may have allowed the free use of their works during the crisis, it is always prudent to acknowledge them whenever using their works.

Conclusion

Intellectual property provides a piece of the armour for fighting the crisis yet defeating the crisis requires a collaborative effort. This calls for stepping away from the individual nature of the IPRs. IPRs are private rights and the owners may do as they wish within the confines of the law. However, freeing IP for public benefit during the crisis means exposing them to the societal challenges they were meant to solve in the first place. This may not only increase the IP efficiency but also provide a breeding ground for their future improvements.

#StaySafe #StayHome #ObservetheDistance


[1] ** the views expressed in this article are those of the writer and do not necessarily represent those held by CIPIT.

The Author would like to acknowledge Galma Godana and Jaaziyah Satar for their research work on this post.

[2] This should not be confused with ‘Design patents’ which are type of patents in the United States. Design patents protect new, original and ornamental design of an article of manufacture. For more details on design patents in the USPTO Website.