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Around the globe, as the first wave passes and new waves of the Coronavirus outbreak come in, seeking a vaccine becomes the main goal for combatting this resilient virus. With researchers around the world racing to develop a vaccine, the issue that will then have to be considered is ‘how to balance intellectual property rights with serving the good of the public.’
The issue has prompted an international group of scientists and lawyers to establish the Open COVID Pledge. A movement which calls on organizations to freely make available their existing patents and copyrights associated with a coronavirus vaccine research to create an open patent pool with the goal of solving this global problem.
The EU is leading the charge to create such a pool by drafting a resolution at the World Health Organization. “The US, UK, Swiss and some others pushed against the WHO taking the lead in pushing for open licensing of patents and know-how for drugs and vaccines.”[1]
Companies that decide to make the Pledge must make a public announcement to that effect and generally offer a nonexclusive, royalty-free, worldwide, fully paid-up license to the IP solely for the purpose of diagnosing, preventing, containing and treating COVID-19, until one year after the World Health Organization declares the COVID-19 pandemic to have ended or January 1, 2023.
Why the reluctance to join?:
As mentioned above, although many countries and companies around the world are in support of the open patent pool, the reasoning as to why there are also many that oppose of it lies in the definition and purpose of Patent rights.
Being a form of Intellectual Property right, patent rights provide creators of new inventions, like novel vaccines and medicines, with a limited-term monopoly over those inventions in the marketplace to help recover the costs of research and development. It can also be seen as an incentive to invent or innovate.
Patents are granted by individual nations and do not apply across borders. However, to gain global protection, an inventor needs to apply for patents in every country – which is critical when it comes to the COVID-19 vaccine as it is after all a global pandemic. The Patent Cooperation Treaty helps to streamline the process; contact us today to find out more on PCT or direct international Patent applications.
The limited-term monopoly on the market is balanced by the requirement that patent holders share information about their inventions in a register to make it available for anyone to use after the patent protection expires. The term of a standard patent for most countries is usually 20 years.
During the patent period, patent holders have exclusive rights to manufacture and sell their inventions. They may also choose to license the technology to others to manufacture and sell to the public. Such licenses include a specified time limit and geographical area to exploit the patent. In return, the patent holder receives royalties or license fees, or both. Find out more on ways to commercialize your Patent at – www.ipowner.org.
Thus it can be said that the reluctance to join the pledge is due to the fear of losing control over the manufacturing and distribution of the vaccine in the countries where the patent rights are granted, in other words, loss of the incentives that Patent rights offer.
Government controls:
Even if patent ownership is in the hands of a private company, the government may still have the right to use them for its own purposes or in the case of emergencies. Many countries have specific laws to facilitate these arrangements.
The Bayh-Dole Act 1980 in the US ensures the government retains sufficient rights to use patents resulting from federally supported research. Under these rights, the government can be granted a free license to use the patent itself or the right to arrange for a third party to use the patent on its behalf.
In situations whereby the patent holder of a publicly funded invention refuses to license it to third parties, the Bayh-Dole Act gives the government “march-in” rights. Under specific guidelines, this means a forced license can be granted to a third party on reasonable terms. This includes in cases when the “action is necessary to alleviate health or safety needs” or to ensure the patented invention is actually manufactured within a reasonable time. In the case of COVID-19 research, this means the US government could order a corporation or university that invents a vaccine with federal funding to license the patent to others to make it.
Whereas in Australia, the government can exploit the patented inventions of others under right of “crown use”. In these situations, the patent holder is entitled to financial compensation from the government. Like most other members of the World Trade Organization, Australia also has compulsory licensing rules in its patent law that force inventors to license their patents to third parties on reasonable terms in specific circumstances. However, the reality is that such compulsory licenses are under-utilized in countries like Australia, New Zealand, the UK and Japan, and rarely granted, if at all.
Working together for the common good:
This brings us to the Open COVID Pledge, which is designed to make the relevant intellectual property freely available under an open license. If more of the public-private partnerships working on a coronavirus vaccine do sign up to the pledge, perhaps it may bring us closer to finding a vaccine, and overall overcome this pandemic. It may go further to allow open-access licenses for lifesaving technologies to become accepted practice. This however should be thread lightly as it could also lead to uncertainties as to what may constitute a life-saving technology and may lead to floodgates in litigation matters.
Conclusion:
Intellectual property protection is critical to fostering innovation. Without the protection of ideas, businesses and individuals would not reap the full benefits of their inventions and would focus less on research and development. It is crucial that every inventor and researcher know their rights to their invention.
As can be seen by the discussion on the Patent for the COVID-19 vaccine, Patent protection is a powerful tool that can be used to control the market. In situations such as the vaccine however, the open pool patent may be beneficial to the overall welfare of the society even if it may mean losing to some extent the control over the Patent rights.
Nonetheless, we invite you to join us at (insert facebook link) for updates on our monthly webinars in order to further understand your Intellectual Property rights and how you can enforce them, or contact us at (insert link) for any inquiries you may have on the matter.
[1] https://www.theguardian.com/world/2020/may/17/us-and-uk-lead-push-against-global-patent-pool-for-covid-19-drugs?CMP=share_btn_tw