COVID-19 and force majeure in administrative proceedings before the Argentine Patent and Trademark Office

The COVID-19 outbreak completely altered the rhythm of life worldwide and is posing all sorts of challenges. In the specific field of industrial property, one of the most relevant of those challenges is related to the difficulties that individuals and companies face to meet strict deadlines and comply with formal requirements imposed by the Argentine Patent and Trademark Office (AR PTO or INPI, after its name in Spanish). The AR PTO is the authority in charge of prosecuting patents, utility models, trademarks, and industrial models and designs in Argentina.

Although the AR PTO has already provided for a suspension in all deadlines and legal terms, there is no doubt that the situation is likely to generate problems and complications that will extend over time. It should be borne in mind that many of the applicants for IP rights in Argentina are foreign individuals and companies and that the restrictions and limitations imposed by each country vary both in scope and duration.

These challenges are very closely related to the concept of force majeure. This concept is well-known in Argentina and refers to situations which could not have been foreseen by a person or, if foreseen, could not have been avoided. It is clear that, in many cases, the problems and complications arising from COVID-19 outbreak around the world will fall within the definition of force majeure. The question thus arises as to the legal effects this situation could have on the administrative proceedings before the AR PTO. In other words, what will happen in cases where a patent, trademark or design applicant is unable to meet a deadline or comply with a specific formal requirement due to force majeure events caused by the pandemic?

First, it should be noted that the Patent Law and the Trademark Law do not include any general provision on force majeure events, and neither does the Law on General Administrative Procedure. However, several legal scholars have interpreted that force majeure events should be deemed as sufficient grounds for suspending and/or extending all deadlines in administrative proceedings. Moreover, some scholars construe that, while deadlines are expected to be met as a general rule, in case of doubt a submission made over an administrative procedure (such as patent or trademark application proceedings) should be deemed as timely made.

In this sense, it should also be borne in mind that the Code of Civil and Commercial Procedure, which applies in a subsidiary manner to the proceedings before the AR PTO, requires courts to suspend or interrupt all deadlines when circumstances of force majeure make it impossible to carry out the prosecution of the case.

In addition, it is worth asking whether the force majeure rules could also have an extenuating effect in cases where applicants are unable to comply with certain formal requirements (e.g., submitting a document in its original version, legalized and/or apostilled). The informality principle becomes particularly relevant to address this issue. The informality principle is a guiding principle in all administrative proceedings in Argentina which provides certain flexibility by excusing applicants from complying with formal requirements provided that they are non-essential and may be fulfilled at a later stage. This principle is expressly included in the Law on General Administrative Procedure and has been acknowledged by the Supreme Court of Justice and by the Federal Court of Appeals in several occasions, including in patent and trademark cases.

In conclusion, it is clear that, despite the suspension of deadlines provided by the AR PTO, the COVID-19 outbreak is likely to result in countless complications in patent and trademark proceedings and that, in many cases, applicants will be unable to meet deadlines and/or comply with specific formal requirements. We thus trust that, in those cases, the AR PTO will suspend or extend the deadlines and even become less strict when analyzing the fulfillment of formal requirements. It should be noted, however, that we are not yet aware of any measure from the AR PTO on this matter. Therefore, it is advisable for applicants not to rely on force majeure , at least for the time being, except where absolutely necessary.