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Will Covid-19 promote the creation of patent pools?

April 24, 2020

In view of the emergency situation caused by the Covid-19 global pandemic and the need to develop effective and globally accessible vaccines and treatments, intellectual property rights, and in particular patents, are now in the spotlight.

Under normal market conditions, patents, as instruments to encourage innovation, provide their owners with several options, such as the possibility of preventing third parties from exploiting the technologies under protection or licensing their patents to other companies in exchange for royalties or fees, allowing them to make a return on their investments in R&D and in turn to continue developing new value-added products, thus boosting the virtuous circle of innovation.

However, given the state of emergency in which most countries find themselves nowadays, fears are centred on the fact that the legitimate use of these powers that are conferred to the patent owner, in a legitimate manner and with positive effects for the economy under normal circumstances, could hinder the fight against coronavirus, increasing the negative macroeconomic impact and slowing down the recovery. Thus, several governments, such as those of Israel, France or Germany, are already beginning to envisage the implementation of extraordinary measures, such as compulsory licences, to prevent existing or future intellectual property rights or patents relating to treatments or means of combating Covid-19 from being a potential obstacle to citizens’ access to them.

In the same line, the World Health Organization has given public support to an initiative of the government of Costa Rica to create a pool or bank of patents, with the aim of preventing population of the poorest countries from being left behind in accessing Covid-19 treatments.

As for the industry, it faces a double dilemma, both reputational and economic, in managing this issue. While some companies in the pharmaceutical sector are offering access to their IP rights, limiting their use to the eradication of the pandemic, representative associations of the sector question the effectiveness of an unrestricted general offer of patents to combat the virus, recommending to assess each situation on a case-by-case basis.

At the European Union level, some European governments are calling for a joint reaction to this situation, using different approaches. Thus, while the Greek government has proposed the creation of a fund to acquire patent rights related to the treatment of Covid-19, Pedro Duque, Minister of Science and Innovation of the Spanish government, has requested the EU to contribute to and invest in the creation of a fund for research and development of treatments and their protection through patents, so as to guarantee the access to the EU population.

The latest joint private initiative in this regard is the Open Covid Pledge, promoted by several lawyers and experts in intellectual property, and which has already been joined by giant firms in the ICT sector such as Facebook, IBM, Amazon or Microsoft, which make their Artificial Intelligence and Big Data technologies available to find effective vaccines and treatments to fight against the coronavirus.

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