26 April 2020
Will Intellectual Property provide ‘the cure’ for Covid-19?
The world is waiting for a breakthrough. Global attention is on the discovery and manufacture of an effective vaccine against Covid-19. Today is also World Intellectual Property day, so right now, all intellectual property (IP) related to treatments and vaccines is of intense interest.
And this is where it gets interesting and complicated.
There are some big questions about what existing and emerging IP can be deployed to create a vaccine to help solve the Covid-19 crisis and how that is done within the existing laws protecting IP.
Though one thing about finding a solution is clear, there is no single government or company that has all the know-how or answers. Some form of working collaboration between government, research institutions and private industry will be required. And this may even need to be international.
So agreements around IP rights will be key to how a vaccine is developed.
Out of all the five forms of Intellectual Property (patents, trademarks, design right, copyright, trade secrets) recognised around the world, developments in patents and trade secrets are taking centre stage.
So why patents?
A patent is granted by a government authority (we’ll see why this is important) to an inventor giving them the right for a limited time (usually 20 years) to prevent others from making, using or selling the invention. Patents must meet two important criteria; it must be an innovative step on what has gone before and not disclosed.
Many vaccines are made up of multiple patents because a vaccine itself is a biological preparation containing differing ingredients. How those different ingredients are composed is the innovation and therefore where the patents sit.
As a form of intellectual property, patents can be sold or licensed to others to the benefit of the owner. Patent rights can also be waived if the inventor so chooses.
Could these rights then be waived in the interests of speedily creating a vaccine? And would companies do this voluntarily? The big issue for them is the cost incurred in developing those patents licenced for use in a vaccine and this may prove to be too great a disincentive.
Governments may also look at their options.
Governments and IP
One extreme scenario are compulsory licences. Because patents are a state granted right, governments under exceptional circumstances can, if they choose, assert rights over ownership and manufacture to third parties.
In fact a number of countries are actively pursuing this route. Among them Germany, Canada, Chile and Israel. Other provisions are covered under UK law for the use of patented inventions for services to the Crown. The question is whether this provision will need to be called upon.
And what company would even want to be named as having their IP requisitioned?
It would also be assumed that such exceptional intervention would involve some compensation to patent holders.
So might companies and research institutions voluntarily share information?
This is where another form of IP is crucial in the hunt for a vaccine against Covid-19; trade secrets. This IP is as simple as it sounds. Companies in the course of their activities may acquire know-how that gives them a competitive advantage. This know-how is so important that knowledge of it is protected and bound by confidentiality to those working with it.
Companies and research institutions working in drug and vaccine discovery work with multiple forms of trade secrets.
Patents alone won’t resolve the challenge of creating a vaccine, there need to be trade secrets such as gene sequencing, manufacturing methodology and a whole host of other forms of data required in vaccine development that may even include business modeling and pricing.
Therefore companies and institutions will have knowledge that will need to be voluntarily revealed in any form of collaboration and I'd expect under specific conditions of agreement.
And some are moving in this direction.
Collaboration is Key
Recent discussion of creating a patent pool of shared patents to help in the fight against Covid-19 has gained some traction. The Costa Rican President Carlos Alvarado Quesada has initiated the call for a medicines patent pool available for free or licensed on reasonable terms, as well as the sharing of other data. This has been endorsed by the WHO.
So much is happening in the fight against Covid-19 that a complete list of current collaborations across the world has been produced and can be found on the Milken Institute who are compiling all the current treatments and vaccines in the pipeline.
Another organisation, the Coalition for Epidemic Preparedness Innovation (CEPI) is an ‘innovative global partnership between public, private, philanthropic and civil society organisations’. This overseeing body is co-ordinating funding and deploying it. CEPI has helped fund the recent Oxford University vaccine.
They are also collaborating with GlaxoSmithKline who own the patent to an important adjuvant to enhance the effectiveness of any vaccine.
CEPI is an example of how public, individual, research institutions and the private sector are coalescing and co-ordinating their responses to Covid-19. The fruits of this provide some cause for optimism for finding a workable vaccination that benefits all contributors.It’s an indication of where we may be heading in terms of how IP is shared in such unusual times.
‘Where there’s a will there’s a way’ couldn’t be truer in our urgent need to find a vaccine against Covid-19. And the way will require a significant collaboration of IP, public and private interest. Something the world will hope for more of this World IP Day.