FICPI World Congress 2022 // Out on a technicality

IP Offices around the world were prompted to suspend or extend deadlines in the face of disruption during the Covid-19 pandemic. In some jurisdictions, this situation established a noticeable contrast with the usual policy of Offices to be strict with respect to granting extensions or restoring IP rights lost in view of a technicality or the missing of a deadline.

Let’s consider that the goal of the IP system to encourage innovation stems mainly from economic fundamentals: risk capital and effort put into innovation must be sufficiently rewarded or investment in innovation will decline.

Looking with renewed perspective on old paradigms, we should ask the following questions when an IP right is accidentally terminated prematurely:

• What is the economic rationale for prematurely terminating an IP right on a technicality or because a deadline was accidentally missed?
• Is premature termination of an IP right on a technicality conducive to the overall benefits sought by the IP system?
• Should an involuntary, often petty, mistake made by an IP owner or his/her representative cause an IP right to lapse?
• Does society benefit from such premature termination?
• What is the reason for sometimes draconian legal interpretations by IP Offices and courts to reject requests for reinstatement of terminated IP rights?
• Is the justification to penalise an IP owner in the harshest possible manner for accidental non-compliance with a legal requirement influenced by moral considerations? If so, isn’t perhaps a moral assessment of the matter misplaced and/or outdated?