Since the World Health Organization (WHO) declared COVID-19 as a global pandemic on March 11, 2020, thousands of researchers across the world have spent months attempting to find a cure and vaccine. Currently, there is no vaccine available and the only way to remain healthy and safe is to avoid COVID-19 transmission through social distancing, personal protective equipment, and quarantining. In terms of the current treatment, most healthcare providers have been using respirators to assist COVID-19 patients in breathing, as there is no promising cure yet.
Aside from COVID-19 affecting the daily operations of many firms, the coronavirus has also had an immense impact on intellectual property in the pharmaceutical industry. As a growing number of people become casualties of COVID-19, the discussion of potential ethical responsibilities that pharmaceutical and biotech companies hold become more pressing to help protect those who are most vulnerable. The question of whether businesses should bundle their patents for COVID-19 research and development efforts is highly contested.
Should the owners of drug patents release their IP to expand the research of drugs and vaccines to cure COVID-19? The answers vary, depending on the country and company.
IP has not been shielded from national emergencies in the past. In 1950, the U.S. Department of Homeland Security’s Federal Emergency Management Agency (FEMA) had prepared a bill that allows the government to access the necessary materials to protect the public. The Defense Production Act of 1950, Title I, Section 107(b)(1) states that:
“The President shall take appropriate actions to assure that critical components, critical technology items, essential materials, and industrial resources are available from reliable sources when needed to meet defense requirements during peacetime, graduated mobilization, and national emergency.”
More recently, on April 2, 2020, President Trump issued a Memorandum on the Defense Production Act. President Trump moved forward by requesting personal protective equipment and ventilators for patients with COVID-19. With no demand or pressure for pharmaceutical branches to bundle their patents or make their patents free of charge, intellectual property may be used at the owner’s discretion.
The government’s involvement in patent bundling varies across countries. For instance, on March 23, the Costa Rican federal government collaborated with the World Health Organization to allow patent rights to be gathered. Currently, Costa Rica has determined that participation in the pooling of intellectual property to find a vaccine and cure for COVID-19 is voluntary and shall be established by the person who owns the patent.
In terms of the IP entity response in the United States, the government has not been heavily involved with its regulation. According to international lawyer and World Intellectual Property Organization (WIPO) Director General, Francis Gurry issued an executive statement explaining that, “the COVID-19 crisis is unfolding at an extremely rapid pace and information concerning it changes or becomes available at a similarly rapid speed. Presently, it may be noted that there does not appear to be any evidence that IP is a barrier to access to vital medical preventive measures, such as vaccines, or to treatments or cures.” Gurry further expressed that, “the problem is, rather, that there is, as yet, no vaccine or scientifically proven and approved [solution].”
Contrary to WIPO Director General Gurry’s statement, the Open COVID Coalition believes that companies should voluntarily share their patents and copyrights. They created an Open COVID Pledge to support voluntary patent bundling, in efforts to expedite the research process for a vaccine. Several companies have already signed the pledge, including: Amazon, Intel, Microsoft, HP, Facebook, and many more. In addition, AbbVie, a U.S. pharmaceutical research and development company signed the Open COVID Pledge. This is particularly notable because AbbVie owns the IP for Kaletra, a drug treatment used for individuals with HIV, and they are now allowing it to be used in clinical trials to treat patients with COVID-19.
When considering the potential Impacts of COVID-19 Drug Research on Intellectual Property, practices of internalizing IP, or sharing IP with other companies, it is important to realize that we are dependent on company leadership and national regulations for sound decision making. Currently, there is no clear answer on how to proceed with pharmaceutical and biotech IP in the U.S. But, we can help you balance ethical, moral, and financial decisions based on financial valuations that incorporate both short-term and long-term impacts for your firm.
GHB Intellect can provide expert consulting services that adapt your intellectual property strategy to the impacts of COVID-19. GHB Intellect has unparalleled expertise in intellectual property. For over a decade, GHB Intellect’s diverse team has worked with hundreds of companies providing them with services such as engineering support, IP development, IP management, IP monetization, litigation support, and mergers and acquisitions advisory.
Contact GHB Intellect today to schedule a consultation with our experts and learn more about the impacts of COVID-19 on intellectual property.