Guest post by Dr Peter GANEA, Sino-German International Economic Law Institute, Tongji University Law School in Shanghai
The Corona pandemic has impacted and continues to impact on global trade and investment, with likely repercussions on post crisis intellectual property in China and the rest of the world. Long-lasting social distancing in most countries effected a further relocation of human interaction to the internet, beyond the already ubiquitous messenger services and social networks. It is well conceivable that even after the virus has lost its horror, society and business will have acquired a taste for online video conferencing and distance learning, at the expense of air and railways passenger transportation. Growing demand for more reliable and more comfortable real-time online interaction would, in turn, intensify innovation in the software and IT sectors. Moreover, the recent US initiative to permanently bring back the manufacturing of essential goods from China may entail less demand for transportation of goods in addition to the lowered passenger traffic, especially if it acts as a precedent for other countries. In addition to a general slump in licensing and transfer activities, such trend may go at the expense of China’s prestigious “Belt and Road” initiative and affect innovation in the areas of maritime and railway transportation, the latter a domain in which China has attained a leading position. Climate activists should not prematurely erupt in cheers over reduced travel and transportation, however. Large parts of the formerly saturated Western societies may henceforth perceive global warming as a comparatively minor problem after having experienced the threat of a new, not fully explored viral disease and existential fears due to long-lasting lockdowns. Also, the imminent global debt crisis may deprive many national governments of the financial resources to further subsidize green industries, with possible repercussions on innovative activity in the sectors of alternative fuels and the like. It should also be considered that if the US, the EU and other parts of the First World really opt for deglobalization by bringing manufacturing back home, such a trend, albeit contributing a reduction of worldwide emissions due to less global transportation, would inevitably increase carbon dioxide levels in those countries in which governments have thus far been most responsive to the climate movement.
A crisis like the current one could open up new path dependencies that will determine the direction of future innovative and entrepreneurial efforts, at the expense of previously booming industries, with corresponding impacts on intellectual property regimes worldwide and in China. The shift of human encounters to the internet through increasingly sophisticated online services, as well as the call for more precise and powerful solutions in the areas of artificial intelligence and Big Data in light of the present inaccuracies of epidemic predictions, may prompt legislatures in China and elsewhere to once again rethink the requirement that a patentable solution must be “technical”. On 31 December 2019, shortly before the pandemic fully impacted on China, the national intellectual property administration CNIPA already amended the Patent Examination Guidelines to substantively facilitate the patenting of software and business method-related inventions.
Also, the increased danger of being drawn into copyright litigation due to the unauthorized use of copyrighted material in the course of online teaching, etc., may become another justification for more flexible copyright limitations. During the past summer term, many of my German colleagues in China, most of them language instructors, were for the first time confronted with copyright issues, here of converting their printed teaching materials into online readable form so as to keep regular lecturing running while being stuck in their home offices.
Moreover, if an effective Covid-19 medicine or even a vaccine will hopefully be invented in the near future, uneven supply in all parts of the world with life-saving medicines may, once again, spark the debate about pharmaceutical patents and non-voluntary licensing. The pandemic also most likely effected the addition of another reason for the grant of a grace period to the latest draft of a fourth amendment to the Chinese Patent law of July 2020. Accordingly, inventors of life-saving medicines, etc., who publish their invention within six months before the patent application for the sake of the public interest during a national emergency or other exceptional circumstances would no longer have to fear that such prior publication will destroy the novelty of their invention.
In post-Coronal times, the experiences made during the crisis may also inspire managers and engineers in other branches with new ideas. The pandemic has, for instance, demonstrated the usefulness of being able to easily readjust manufacturing lines originally intended for the assembly of cars or household electronics to make respiratory masks, lung ventilators and other medical equipment. In the long run, such newly arisen demand may boost innovation in the area of flexible manufacturing systems, which, in turn, may motivate legislatures in China and elsewhere to further refine their method patent and know-how protection as the volume of filings and disputes in this area increases. Increased demand for flexible production technologies may also entail more innovation in the area of 3D printing, initially within the manufacturing technology sector, later on permeating to the consumer goods sector, with ever more powerful and reasonably priced printing devices for household use. The assumption that such development will entail a massive increase in patent, design and copyright litigation is certainly not too far-fetched.
Of course, all of this is highly speculative and may overvalue certain emerging trends while neglecting others. One thing is hardly imaginable, however, namely that the pandemic will have no impact on intellectual property at all.
Dr. Peter GANEA