Thursday 23 April 2020

Intellectual property amidst the COVID-19 crisis

The COVID-19 crisis is having adverse effects on businesses globally, and New Zealand’s lockdown policies have required everyone to adapt rapidly to an environment where most regular workplaces are inaccessible.

AJ Park has a comprehensive business continuity plan and had already implemented working from home for all staff before New Zealand’s Level 4 lockdown commenced. We are operating at full capacity to serve the needs of our clients.

This global pandemic is a constantly evolving situation and it is impossible to know how long it will be before most businesses can go back to normal operation. It is essential for businesses to actively manage their response to the crisis and make informed decisions on how they can act in their best interests, but in these circumstances, information can become outdated quickly. For this reason, we strongly recommend that our clients who are concerned about their intellectual property (IP) portfolios get in touch with us. We can help you make a plan that takes in to account the most up-to-date information on the pandemic.

There are some issues that every one of our clients will have to consider.

Deadlines

Clients with existing IP portfolios may be wondering whether deadlines will be affected by the crisis. Many IP offices globally have closed or are operating at limited capacity.

Some IP offices are extending certain deadlines to varying degrees, sometimes with special conditions for extension. For example, the Intellectual Property Office of New Zealand is accepting requests for deadline extensions if the delay is related to COVID-19. IP Australia is offering extensions of up to three months free of charge until at least 31 May. The United States Patent and Trademark Office is extending deadlines by 30 days if the original due date was between 27 March and 30 April, and the delay was due to the COVID-19 outbreak. However, it is important to note that these extensions do not apply to all deadlines.

Our case and data team is keeping track of the latest updates from each IP office. We are operating at full capacity, so will still be able to complete instructions by the original deadlines, but you may wish to take advantage of these deadline extensions.

Should I abandon an application?

If you have an IP portfolio with pending applications and fees to pay, you may be wondering whether to abandon these applications in order to save some money for your business. Keep in mind that the more information you have, the easier it will be to make a good decision, and you may be able to take advantage of some of the aforementioned deadline extensions in order to delay the difficult decision of whether to abandon a significant investment.

You should also consider which IP rights capture the competitive advantage of your business, and which may be less critical. Abandoning an application now is a short-term cost saving that could lead to much greater costs in the future if an essential aspect of your business lacks IP protection. If you need to make a decision like this for your portfolio, consider seeking strategic advice from one of our IP professionals.

Should I invest in new IP?

While your business is working from home, you may be considering whether to start the process of acquiring new IP rights. It is worth keeping in mind that this is a long-term process. Many of the costs involved will be incurred later down the track—months or even years later. Nevertheless, there are still costs incurred upfront, and some that may come sooner than expected.

Your business will need to have funds available and good budgeting practices to accommodate these costs. There are also time-sensitive filing windows to consider. If you have new IP that you cannot take to market because of the COVID-19 crisis, then delaying the filing of IP applications may be the best option.

Alternatively, immediate action may be required if you want to disclose a product soon and still secure IP rights. Our IP experts are always available to discuss your options if you are considering starting this process.

Conclusion

The longer you can wait before making major decisions about your IP strategy, the more information you will have about how the constantly evolving COVID-19 crisis will play out.

Deadline extensions may provide a means of delaying such decisions so that you can be better positioned to protect the cashflow of your business. However, this does not mean you should delay contacting us to discuss your business’ IP portfolio. We can help you plan how long you can afford to delay these decisions and provide expert advice on what you can do to manage your IP rights.

If you are concerned about your IP portfolio amidst the COVID-19 crisis, get in touch with us and we will work through these difficult times together.