Preparations for the outbreak of COVID-19 in Ireland began in January 2020. In March, the government closed public places such as schools; banned large gatherings; restricted non-essential movement; and offered financial support to businesses and individuals. The government plans to ease the lockdown measures on May 18.
The Intellectual Property Office of Ireland (IPOI)
The IPOI closed to the public on March 13. Consequently, the days between March 13 and May 5 are deemed to be "excluded days" for all purposes under the Irish Patent Act and Rules. On May 4, the Office extended the closure to May 18. The IPOI invoked existing legislation in the form of Rules 77 and 78 of the Irish Patents Rules 1992. The rules provide that whenever a deadline fixed by the Irish Patent Act or Rules falls on a day on which the IPOI is not open to the public, such deadline can be completed when the IPO reopens.
IPOI staff are working remotely and continue to maintain all online services, including e-filing of applications, electronic fee payments, and email enquiries (but not telephone enquiries) during normal working hours. In any case, the IPOI already accept notifications and evidentiary documents sent by e-mail. It is therefore still possible to continue to secure valid filing dates for new applications and to meet any deadlines during the period of closure.
The Law & Practice of Trade Marks examination (scheduled for April 21) and the Law & Practice of Patents examination (scheduled for April 22 2020) have been postponed until the autumn.
Impact on the courts
Civil proceedings for patent infringement are generally heard in the Commercial List of the Irish High Court. There are special arrangements in place for the business of the High Court.
All court offices remain operational, subject to some limitations, and enquiries can be made by email and post in the normal manner. In order to ensure compliance with government measures, while retaining access to justice, arrangements for attendance at public counters in respect of civil proceedings changed from March 30. Only those with urgent applications, which cannot be dealt with by email or post, will be given an appointment.
The Central Office of the High Court, which hears patent infringement and revocation proceedings, will be open by appointment only to deal with urgent matters, including injunctions and the issue of proceedings where the statutory time limit to issue is close to expiring.
The use of video conferencing for taking evidence in civil cases is already a possibility, but the precise way in which hearings are to be conducted is being kept under constant review. A considerable amount of work has been done on putting in place the infrastructure necessary to facilitate remote court hearings, which nonetheless comply with the constitutional obligation that justice be administered in public. An initial trial is being conducted and, if successful, it will be deployed to conduct actual hearings. The High Court piloted remote hearings at the end of April, and an update on this is expected in due course.
Order 117A of the Rules of the Superior Courts allows court users to have the option of lodging court documents at the offices attached to the High Court by post, or through a document exchange service. Parties to proceedings were already in a position to communicate electronically with the court and an electronic copy of written submissions is normally sent by email (in addition to the hard copy) within the time fixed.
State can use patented invention
Section 77 of the Irish Patents Act allows the government to commercialise the subject of a patent or application for the service of the State, and for the commercial acts to not amount to an infringement of the patent or application concerned.
Such provisions are to allow the government to use the claimed invention for, amongst other things, the maintenance of supplies and services essential to the life or wellbeing of the community, and ensuring the public safety and the preservation of the State. However, it is unlikely that the government will implement any such compulsory licensing unless supply of necessary medicines becomes inadequate.
Tax incentives
The Revenue Commissioners of Ireland also provides a Research and Development (R&D) tax credit for money spent by a company on research and development activities, which is calculated at 25% of qualifying expenditure to reduce the company’s corporate tax.
Although the Revenue Commissioners usually only pays the cash refund after September (once a company’s corporation tax return has been filed) each year, payment will now be expedited to assist businesses engaged in R&D during the COVID-19 crisis.
Such businesses can also avail of a number of government-supported initiatives to support and assist small and medium-sized enterprises (SMEs) and small mid-cap enterprises conducting research and innovative activities to deal with COVID-19.
Outlook
In some ways, Ireland remains open for business during this pandemic, and IP applicants and proprietors can continue to secure valid filing dates for new applications and to meet any deadlines before the IPOI.
Although the High Court is open by appointment only for essential business, all court offices remain operational and the Irish Courts Service is looking into the possibility of conducting remote court hearings as standard. Businesses engaged in R&D activities related to COVID-19 can also avail of government assistance during this crisis.
Ireland’s economy is primarily a knowledge economy, focused on high-tech, med-tech, fintech and agri-tech sectors, making Ireland well placed to deal with the outbreak of COVID-19. Ireland remains open for business.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, any other of its practitioners, its clients, or any of its or their respective affiliates. This article is for general information purposes only and is not intended to be and should not be taken as legal advice. Please contact the author(s) if you have any questions about this article.
Author
Donal M Kelly (Partner)