Cooperative IP Responses to COVID-19
by Dave Davis
Scientists, inventors, and government officials around the world are in a global race to find solutions to address the effects of COVID-19. The response by the scientific community has been immense, with life sciences and medical device companies both building on prior research and conducting new research. The medicines and technologies being developed are all subject to intellectual property (IP) protections—and, more likely than not, companies developing these life-saving solutions will apply for patents on their inventions. This raises an important issue, as these patents and the inventions underlying them will conflict in a variety of ways, and any legal action taken among the patents’ owners to protect the ideas behind the inventions could largely prevent the general public from benefiting from them—or at least from benefiting anytime soon.
In periods of medical urgency, it’s imperative for the community to work together. Instead of fighting for IP, the companies searching diligently for solutions to mitigate the pandemic’s effects must agree to work cooperatively—at least in part—on the medical issue at hand in order to do what’s best for the greater public good.
INCREASING COOPERATIVE ACTION
Competition in the biotech sector is often very fierce. While, in less trying times, this usually results in a bigger social benefit in the form of new or more effective treatment, the most important action for the medical community right now is to find powerful treatments for those who suffer from serious—and lethal—complications from COVID-19. Fortunately, we’ve already seen an increase in cooperative action among biotech players to accelerate the process of circulating effective drugs and technologies into use for sick patients. For example, the World Health Organization (WHO), based on a proposal by the Costa Rican government, implemented the voluntary COVID-19 Technology Access Pool. This repository will collect patent rights, regulatory test data, and other information that could be shared for developing drugs, vaccines, and diagnostics in response to the pandemic.
This idea of patent pools is not a new one. Dating back to the Industrial Revolution, they are legal agreements between two or more patent owners, or among any group of competitors, to cross-license one or more of their patents so that anyone within the pool can use them. The purpose of these pools is to benefit society at large by providing new products, services, and technical solutions—often more efficiently and/or at lower prices—that might otherwise be delayed or eliminated by patent litigation. In turn, patent owners split any profits.
Concerted efforts like this among the big and small players in the biotech field have caused positive views of the pharma industry to soar during the COVID-19 pandemic, rising to 40%, according to a study by The Harris Poll. Given the industry’s well-documented poor reputation over the past few years (only 27% of Americans had a positive view of the pharma industry as recently as fall 2019), this is astounding—and industry players should take note. These stats should serve as positive reinforcement for increased and continued collaboration in the fight against COVID-19, as they show clear evidence for how much cooperative action (taken in the best interest of the public) is valued.
Other forms of cooperative agreements among competitors, beyond patent pools, have emerged. For example, the Open COVID Pledge initiative is a voluntary commitment to contribute the use of applicable technologies and patents toward combating the pandemic. In addition, some countries, including Chile, Ecuador, Israel, Canada, and Germany, have initiated emergency legislation to allow for the use of compulsory licensing to facilitate access to health products, drugs, devices, and other technologies to manage COVID-19.
Committing to a common-cause effort to allow for the quick and easy sharing of scientific knowledge to treat and ultimately prevent COVID-19 is the only acceptable response from the medical and scientific community. Even after the pandemic is behind us, increased cooperative IP response might prove to be a better way for the industry to do business.