Guest Blog|COVID-19 Patent pooling – Sink or swim?

Authors:

David Knight, Partner, Fieldfisher

Joshua Marshall, Senior Associate, Fieldfisher

Recently, patent sharing for a COVID-19 vaccine has been back on the news agenda with the launch of the Covid-19 Technology Access Pool (C-TAP) by the World Health Organization. Initiatives like this are not new, as a similar licensing system is already in place to allow the manufacture of medicines to treat HIV, Hepatitis C and Tuberculosis.

As expected there has been some push back from some pharmaceutical companies of patent sharing for COVID-19, but why might this be? Well, if we look first to the patent system in the UK, the prevailing theory underpinning this is based on a need to incentivise invention. Owners of an invention are granted a 20 year legal exclusivity in exchange for a detailed disclosure of the invention and how it works. This 20 year period allows the inventor and/or patentee to generate revenue from their invention which, should hopefully offset the investment incurred in creating the invention and result in profit. Once the 20 years is over, the intellect behind the invention enters into the public domain and is therefore accessible by competitors to produce their own variants. In other words, innovation is incentivised through a legal exclusivity agreement, as well as disclosure of a technical advancement, which enriches the state of the art to the benefit of everyone.

Now, moving back to the C-TAP initiative; why has the WHO implemented it?

There was and is a growing fear that the patent system could be utilised so as to restrict the ability of poorer countries to purchase coronavirus vaccines and treatments. This is because the patent system restricts who can utilise the invention, increasing demand and driving up the price. Similarly, there is likely to be a stockpiling of effective vaccines and treatments in anticipation of a second wave of coronavirus, which will create scarcity. 

The aim of C-TAP is to ensure the equitable distribution of supplies relating to coronavirus and that poorer countries are not left behind. These less economically developed countries can often fall outside of a patentee's target market when seeking to exploit a patented invention and may not be able to afford the vaccine. The initiative would see patents being pooled, with companies and governments able to request a licence for the use of the patented invention. This, in turn, would allow vaccines and treatments to be shared globally with the potential manufacture of generics in poorer counties.  It would also facilitate the sharing of information between entities, including trial data which, in theory, will speed up the process for successfully creating a vaccine.

Will C-Tap be effective? These are unprecedented times, but where the C-TAP initiative does not prohibit revenue from being derived by pharmaceutical companies through their patented inventions, there could be a fighting chance.