Usefulness of Patent Pooling As a Tool To Combat COVID-19

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Patent Pools is an agreement between two or more parties to license their patents to any third party. It is a series of collections of patents related to the use of single technology. Further, people get license who sell or use that specific technology. It gives fair access to all the people willing to license the technology/product. It helps in balancing out both innovation and cost efficiencies. Additionally, it helps in reducing the legal hassles between the companies for the use of protected products.

Moreover, it reduces the time and expenses incurred in it as it helps in avoiding litigation. It also promote negotiation with other patent holders. Both the patent holders can agree for not suing each other for infringement. There is no need for licensee to enter into an agreement with every individual patent holder rather they can enter into a single agreement.

There is no guidelines or provision under Indian Patent Act for the formation of patent pools. Section 102 of Indian Patents Act is a helping provision for the formation/creation of patent pools.  The government manages it for the public interest and welfare.

COVID-19 and Intellectual Property  

Today, human life is in great distress, vaccines are the only appropriate way to lead a normal life again. There is already development of some health technologies related to COVID-19 by scientists, researchers, etc. such as diagnostic testing devices.

Though, till now the scientists and researchers did not come up with a proper solution to respond to the COVID-19. Considering the present situation, it will take some months for the availability of any drug/vaccine. When it will be made, the instant availability of vaccines across the whole world would be an impossible task.

The drug/vaccine made for fighting against this virus would be protected by Intellectual Property. Approvals would be required for product availability in each country to overcome the present situation. There is a dire need for quick marketing and manufacturing of the drug/vaccine. Yet, it requires continuous communication between innovators, manufacturers, and sellers. 

Around the whole world, there have been innumerable efforts to produce a drug/vaccine for combating COVID-19. These innovations would be subjected to be patented. Moreover, everyone would want to keep exclusive rights for their respective innovation. Although, it may lead to hampering a way of combating COVID-19. Hence, there is a need for an appropriate solution.

Data Sharing and Patent Pooling

Amidst the medical urgency, there is a need for urgent and fair access to the people of all the countries. The drug/vaccine should be provided with the greatest degrees of open data and collaboration as it will help in achieving the goal.

Technology Intellectual Property Pool or Patent Pool would promote sharing the benefits of any research and development concerning COVID-19. Moreover, it would benefit each country as there would be easy access to vaccines which in return would heal the country.

Researchers and scientists should collaborate and share their medical data to speed up the pace of responding to a pandemic.  Exclusive rights should not hinder fair rights to access vaccines in such a time of crisis. As people across the whole world are dying of this deadly virus cooperation of each country is required. It is not viable for the producer country to rank its need first.

Additionally, it would be difficult for countries that are dependent on supply chains for vaccines. The issue of data sharing mechanism was raised during an emergency when the Ebola virus outburst in Africa in 2013-2016. WHO recommended having “COVID-19 Open” which is a data sharing and reporting protocol keeping in mind the present emergency. The goal is to share data and get a solution to combat this virus as quickly as possible. By doing this, researchers can share data and keep their authorship as well.

Patent Pools: Viable?

During the time of emergency, TRIPS allows for compulsory licensing. This would help in using the technology or vaccine on a sharing basis.  Costa Rica’s president has proposed to create a patent pool of medicines, vaccines, inventions, and testing helpful in preventing COVID-19. Besides, it should either be free or of reasonable licensing terms. Furthermore, it should involve voluntary assignments, regulatory test data, copyrights, and blueprints for diagnostic tests, devices, vaccines, or drugs.

Although, the need for the time requires such steps this proposal is an ambitious one. It requires commercial firms to give away their intellectual property to the pool. Moreover, it not only involves patents but copyrights, designs, data, cell-lines, etc. Eco-Commons was a pool of eco patents. It was made to increase growth and innovation in the field of environmental technology.

According to a 2018 report by the Centre for International Governance Innovation, it was unsuccessful in accomplishing its goals. This report was on the effectiveness of the Eco-Commons. It stated that there were many administration and management issues due to which it was discontinued in 2016. The lack of communication between the members was the major reason for the downfall. At the time of SARS and influenza outbreaks, the creation of patent pools was discussed but it was never formed.

WHO’s Initiative 

The World Health Organization (WHO) announced the launch of a voluntary pool. It is for the collection of patent rights, regulatory test data used for making drugs, vaccines for responding to a pandemic. This initiative by WHO is called “Solidarity Call to Action”. Moreover, this step is taken to ask the government, the industry of various countries to contribute. Although, few countries are positive about contributing to this initiative. Many wealthy countries including the U.S. are not on the same page for this decision.

Trump was against this particular proposal and even warned to end its relationship with WHO.  Pharmaceuticals companies are against this as this would undermine their patent rights. Though, some drug companies had issued a voluntary license.  For example, Gilead Sciences licensed drug Sovaldi, used for hepatitis C treatment to poor countries. Also, its remdesivir medicine is in demand for COVID-19.

Conclusion

A patent pool is a viable option in the times of public health emergencies. Though, it could only work as a successful idea when the countries with good wealth and resources would also contribute. As many countries are not on board with WHO’s proposal, it would hinder the proper working of the pool.

Moreover, there are some unsuccessful precedents of creating patent pools, for instance, eco-commons. The main reason is that people see it as a business opportunity and not as growth in research and development. Although there are only few successful examples but at such times of distress, patent pools would benefit everyone. Each country should understand the urgency of the matter.

This virus is sweeping away the people across the globe. Furthermore, by contributing to it we can help each other and strive for better health for the people across the whole world. The pooling of knowledge, data, and IP sharing should be seen as a pathway to combat this deadly virus. Further, it would lead to saving lives of the innocent people. Eventually, it would also save the economy of every country as it is wisely said “health is wealth”.


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