Intellectual Property, Accessibility and Public health

On the 30th of July 2020, the international organizations – WIPO, WTO and WHO jointly published a study report titled “Promoting access to medical technologies and innovation – Intersections between public health, intellectual property and trade”. This second edition report records the numerous significant developments that have occurred since 2013, when the first edition was published. The 2013 edition of the report may be accessed by clicking here and the 2020 edition of the report may be accessed by clicking here.

The 352 page long report takes stock of a number of issues currently plaguing the world, especially the COVID-19 Pandemic outbreak. The report discusses upon the imperative for international co-operation in respect of the public health and medical technologies, access to essential medicines, efforts to tackle anti-microbial resistance, intellectual property systems, traditional knowledge in health and policy, IP management and product development process, patent filing strategies in public and private sectors and the exercise of patent rights, intellectual property related determinants of access, compulsory licenses among about 89 other related topics. 

The text of the second edition was apparently completed prior to the COVID-19 outbreak but the report fits ever more so aptly into the current context. Special inserts have been placed within the report to discuss the pandemic and recommend policies for adoption. In respect of intellectual property and the current pandemic, the report stresses on the fact that there is an urgent need to encourage innovation. According to the report, dissemination of patent information ensures access to technical information, which can support research and development (R&D) needs. WIPO has already established a COVID-19 search facility within its global PATENTSCOPE database which offers predefined search strings that support the searching of COVID-19- related patent information. The report also takes note of the initiatives by various other IP offices such as the USPTO, EPO, CNIPA, KIPRIS, BPTO, etc. in adopting policies such as prioritized examination of COVID-19 patents and introduction of tools and databases to enable inventors in uncovering COVID-19 related patents and information for R&D purposes.

Global IP systems and TRIPS flexibilities

The report notes that well-functioning IP systems should consider the interests of a wide range of stakeholders, such as start-ups, R&D institutions, both public and private, universities and corporations, as well as the interests of funders, whether public or private, and of the public at large, including patients, who ultimately benefit from innovation that meets their needs. To achieve this delicate balance, each country can tailor its domestic IP system to its particular needs and circumstances, including through TRIPS flexibilities. The IP system has a number of features that support and facilitate R&D and access, including certain exclusions from patentable subject matter and limited exceptions to patent rights. These options are available to support countries’ access to medical technology and innovation policies.

Compulsory licensing

The report takes note of the much debated compulsory licensing provisions and states that in respect of Special Compulsory Licensing System for manufacture and export of pharmaceutical products, questions have been raised regarding the response that the system can provide to the COVID-19 pandemic and the fact that developed country WTO members excluded themselves from using the System as importers. The report mentions of how legislation has been passed in some countries to ensure that mechanisms for expedient compulsory licensing and government-use licensing are in place if needed in order to facilitate access to COVID-19 therapies, for example, in Canada and Hungary.

Sharing of health related data; access and benefit-sharing for genetic resources

In response to an initiative of the Government of Costa Rica, the WHO on 29 May 2020 launched the Solidarity Call to Action and the COVID-19 Technology Access Pool. The Call has been endorsed by 39 other member states as well as other stakeholders. Key elements of the Solidarity Call to Action include: public disclosure of gene sequences and data; timely publication of all clinical trial results; use of global non-exclusive licensing for relevant health technologies, including through licensing to the Medicines Patent Pool; and promotion of open innovation models and technology transfer that increase local manufacturing and supply capacity, including through joining the Open COVID Pledge and the United Nations (UN) Tech Access Partnership.

Patent Pools and COVID tools

Transparency in COVID-19 R&D and access initiatives is also an essential part of the WHO Solidarity Call to Action. In keeping with this, the report takes note of the launch of the WIPO COVID-19 IP Policy Tracker which is an online listing that provides information on measures adopted by IP offices in response to the COVID-19 pandemic, such as the extension of deadlines to ensure continued operations. In addition, the Policy Tracker provides information on legislative and regulatory measures taken by governments, as well as on voluntary actions of a broad range of stakeholders, to improve access. It relies on information provided by IP Offices, member states and other entities, hence is not an exhaustive list of all actions taken regarding COVID-19.

Voluntary Licensing and Social responsibilities

Software licensing and eHealth are covered extensively in this report. According to the report, many organizations, corporations and other rights holders have undertaken voluntary actions and initiatives during the COVID-19 crisis. Open licensing models have been used collaboratively to develop and manufacture hardware to resolve supply chain weaknesses. Numerous private sector companies have also taken access-oriented actions such as committing to non-exclusive and royalty-free licensing or issuing non-enforcement declarations of patent rights in some or all jurisdictions; publishing scientific data on a free-to-use basis; publishing technical specifications of vital equipment (e.g. ventilators); and sharing knowledge to enable others to manufacture and use such technologies.

In addition, among other voluntary actions in support of R&D that have been observed are the permission to use text and data mining and machine-learning technologies and to freely access and reuse COVID-19-related scientific literature protected by copyright, and the making available of standards protected by copyright.  For example, as part of the Open COVID Pledge, a number of private companies and universities are granting free access to patented technologies and protected designs related to diagnosing, preventing, containing and treating COVID-19.

BananaIP’s Open COVID Plegde

Our readers might recall that we at BananaIP, pledged ourselves to the Open COVID Pledge program back in April with the aim of contributing to the world at large in our own little way.  First, with an objective of promoting generation of inventions that could help in the fight against COVID-19, we had earlier launched a free patent program for inventors of personal protection equipment, especially masks. Soon after, we launched another free patent program for inventions aimed at COVID testing, prevention and cure (“COVID Inventions”) where we pledged to search, draft and file patent and design applications in India with respect to COVID Inventions without charging any professional fee if the applicant agrees to take the Open COVID Pledge. We are extremely proud when we say that several patent applicants reached out to us with their inventions and joined us in honoring the pledge.

As rightly noted rightly by the directors of WIPO, WHO and WTO, the COVID-19 pandemic has brought extraordinary challenges to peoples’ health, economies and societies at large. Global collaborative efforts are therefore required now more than ever before.

Link to 2013 edition of the report available here.

Link to 2020 edition of the report available here.

Authored by Gaurav Mishra


Leave a comment