This month’s CLIP of the month is an article by Jorge Contreras, Professor of law at the University of Utah, about the possible use of patent pools as a way of facilitating the research and development of diagnostics, treatments and vaccines against COVID-19. You can find the article here.
The article re-visits the idea, previously considered during the SARS, avian flu and swine flu outbreaks, that patent pools could be used as mechanisms to help combat disease outbreaks. The President of Costa Rica has called for the WHO to create a COVID-19 intellectual property pool covering patents, data, know-how, cell lines and copyrights and designs, with rights to this IP either being licensed for free or on “reasonable and affordable terms”.
Professor Contreras notes that a key challenge presented by the introduction of a formal patent pooling arrangement arises from the fact that competition authorities are of the view that patents included in the pool must be complementary rather than substitutable, since the inclusion of substitutable technologies in a pool is likely to lead to a reduction in innovation (for example, there will be less of an incentive for a pharmaceutical company to develop a new, more effective vaccine if it will then be licensed via the pool along with less effective treatments). Determining which patents are complementary and which are substitutable is a difficult and costly exercise. There may also be further complexities when it comes to determining “reasonable and affordable terms” for licences of the pooled IP.
However, the author suggests that more flexible solutions, for example modelling the WHO’s Medicines Patent Pool, could be replicated in order to overcome these obstacles. The Director-General of the WHO has endorsed the proposed pool, but it remains to be seen the precise form it will take, and whether the WHO is able to persuade patent holders to join in an endeavour of this kind.