Anton Polikarpov | 26 October, 2023

IP sphere during the war: challenges, trends, innovations

5 хвилин

First impressions and unaccounted-for risks

A little bit of our company’s history. It is worth saying that the lawyers, at least those with whom I spoke in early February 2022, did not take a large-scale war into account as a risk in their planning, and I did not particularly consider it either. Otherwise, I’m not sure I would have informed my former partner colleagues that I was starting my own business on 1 March 2022. Therefore, everything that began with the outbreak of the war became a continuous challenge for us, and we are still working in this mode. As far as I can recall the chronology of events now, the first surprise for me personally was that at that time Ukrpatent was operating almost from the very beginning of the war, accepting and processing applications for registration of IP objects, and thus allowing us, patent attorneys, to work. Because, for example, the courts did not consider IP cases, and the first cases started to move closer to the beginning of summer 2022, and the same was true of the Antimonopoly Committee.

The importance of working with non-residents

The second point I would like to draw attention to is that while in other areas of law work resumed later, IP lawyers working with non-residents have always had work. It so happened that the culture of intellectual property and its observance is much stronger in developed countries, and companies in such countries did not particularly cut their budgets for ongoing processes when the war started in February 2022. Yes, there were some pauses with large projects and courts, but everything related to the protection of intellectual property rights has continued from the first days of the war, and we have had at least some work.

Cooperation of the IP community around the world

The third thing I would like to mention is the great cooperation of the IP community around the world. I have not seen the way our foreign colleagues have welcomed our relatives in other countries, given us their homes, helped us at first, in other areas. Perhaps the answer is that before the war we travelled a lot, participated in conferences and made friends all over the world, and the time has come when these friends have proved themselves very well.

Changes in Ukrainian legislation on intellectual property

Fourth, and also quite unexpectedly, the Ukrainian parliament has been working quite actively during this time to implement the norms of European legislation in accordance with the Association Agreement with the EU. The rules currently being adopted in the field of intellectual property law have been expected by the professional community for years. And it turned out that the favourite phrase “it’s not the right time” does not apply to us in this case.

Electronic document management and simplification of procedure

The fifth thing that should be mentioned is that electronic document management systems have been operating in the field of IP protection for quite some time. That is, a patent attorney, and this is very relevant now, may be located in another country, but can file applications with the Ukrainian office in electronic form. Moreover, the state even encourages this by reducing fees for filing applications in electronic form. The same applies to the fact that there is no longer a need to submit original copies of certain documents directly to the office, as, for example, a power of attorney can be submitted using a QES in the same way as an application, which was not the case before February 2022.

The law on suspension of deadlines in the IP field

The sixth thing that may be noteworthy, but it is not yet clear whether it is positive or negative, is the adoption by the Verkhovna Rada of Ukraine of a law on the so-called suspension of deadlines in the IP field. This change means that now the violation of the time limits clearly defined in the IP registration procedure does not lead to irreversible consequences. In other words, by justifying the missed deadlines by the existence of the said law, patent attorneys may hope to extend the registration procedure for this object.

The law has had its own fly in the ointment during its application. In short, it turned out that not only the procedural, “internal” terms during the registration of an object are extended, but also the terms related to the period of validity of this IP object in general, for example, when it is about to expire upon the expiration of the term for which it can be registered under the law. In particular, if the law is read literally, it may seem that patents for inventions that should expire during this period may in fact be extended, which puts other market players at a disadvantage.

Challenges and issues

If we were to describe the challenges in our industry related to the war in general, it would be primarily the separation of law firm teams, but this is, of course, not only true for our industry. Teams work in different cities of Ukraine, in different countries, and this does not contribute to team cohesion. This is a problem that will have to be solved in any case, because the war can be long. Regarding purely IP challenges, for example, it is unclear to me when the High Court on Intellectual Property will start working.

IP cases in some district courts can take up to one and a half to two years to be considered, which is extremely inefficient. The war is also associated with an obvious increase in the turnover of counterfeit goods, which can only be explained by the impunity of offenders and the shift in the focus of the law enforcement system from our category of cases to other, more important ones. I cannot but mention the problems associated with the complexity of organising business development processes abroad for men of military age.

All the trips abroad that are taking place now and are related to conferences need to be organised very far in advance, and of course, not on the scale that we could and would like. In any case, for me, as the head of Polikarpov Law Firm, there was no other pre-war time when I could develop my company and compare it with our period. Therefore, I can say that this time has both its opportunities and problems, but life goes on, and we must do our best to work, pay taxes and support our common great front here, in the rear.

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