Coronavirus and IP – Is it time for a reflection about the patent system? Or about the life science first?

by | Mar 15, 2021 | Articles, Intellectual Property, Legal & IP Strategy, Life Sciences, Patents

During my recent attendance at the MIP – Managing Intellectual Property, International Patent Forum 2020 in London early this month, which Daniel Law sponsored, I had the privilege of attending to a session in which the Hon. Mr. Justice Birss, judge of the High Court of Justice for England and Wales, spoke about “Comparison of international IP enforcement”.
To those who don’t know him, Justice Birss is a paramount person in the IP World.
And that is not because he dedicates his spare time to keep bees but primarily because of the prominent decisions he handed down.

For example, in the Unwired Planet v Huawei case, “he famously ruled that global licenses can be fair, reasonable and non-discriminatory (FRAND) in the 2017 first-instance judgment. Birss had predicted at a conference in 2018 that disputes over FRAND terms would one day be fought in one place, and would be treated in a similar fashion to international commercial dispute resolution”.[i]

Justice Birss kicked-off his Keynote Address with a general open question: “Why are we undergoing the current situation due to Covid-19?”.
It is rather obvious that it is because that virus was so far unknown, thus no treatment was made available so far.

But again, why?

Wouldn’t it be possible, for example, to have studied other “Corona” earlier and then come up with its current version labeled as Covid-19 and thus propose in advance either a vaccine or treatment or both?
Sadly, the answer seems to be “likely yes, it would”.
Most of the time, vaccines, as well as antibiotics, are useful for “emergency-only cases” with high demands under a limited timeframe, the so-called “emergency period”.

In his view, an antibiotic patent that lasts more than twenty (20) years could make some sense.
While providing a longer period of protection, that patent+ would allow innovators to recover investments beyond the “emergency period”.
Likewise, a pediatric-type extension could foster innovations in those areas.

On a related issue, Justice Birss inquires whether FRAND-type clinical trials could be helpful to amortize costs and share results within each own R&D center.
Here the challenge is “why not benefiting more than one innovator with more general results that could be applied to each one´s particular development”?
Clinical trials amount to about 60% of the development cost of a new medicament, which may reach US$ 2.6 billion, under a success rate of only 21.5% that achieve the human trials stage (i.e., the last stage before launching, also known as “Phase III”).[ii]

Anyways, it is an unquestionable fact that there is room for a debate aiming at reviewing our patent system.
However, perhaps even before that, our health-related science principles would require a more urgent review in terms of what to research and how to set priorities.
Hopefully, this Covid-19 will pass sooner rather than later.

However, we can´t be a hostage of the “next unknow Corona”.

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