Coranavirus and its relationship with IP exclusivity


With the global shutdown that has occurred due to COVID-19, its presence has caused long-lasting effects in all aspects of our lives and the way businesses operate. To no surprise its presence is also interacting with exclusivity offered by IP rights.

These discussions have appeared as major drug companies rush to develop vaccines to tackle this pandemic. Last month, (WHO) announced that remdesivir, an antiviral drug originally developed by Gilead sciences to treat ebola, might be effective in curing patients from the virus. GSK and Sanofi among others are developing vaccines to stop the spread and Fujifilm’s flu drug has been reported by the Japanese government to be a potential cure.

There is no doubt that these companies will seek patent protection for their products. Gilead was granted three patents for remdesivir and already has five more pending. However researchers from the Wuhan Institute of Virology have also reportedly filed a patent application for the use of remdesivir for the treatment of Coranavirus. This move was highly criticized (which Unacom will cover soon). But essentially although Wuhan did not develop remdesivir, if it was the one that established that it can be used to treat COVID-19, then it should be able to be awarded a new medical use patent. This would be further supported if it was the one to perform all the relevant research and clinical testing.

The deputy director of China’s National Intellectual Property Administration stated that drug investment is extremely costly and requires strong patent protection. If remdesivir proves effective and is distributed to patients this will only be done while respecting the legitimate interests of the patentee. Amidst a global pandemic these statements are quite surprising and does nothing to ease the tension between private and public interests in patent law, especially when it comes to pharmaceuticals. This is shown in global attitudes where in some countries it was not until the 1990’s that pharmaceuticals were allowed to be patented.

In reflection of the global health crisis that is occurring and the disastrous effects it is having on all aspects of life, it would be beneficial to curtail exclusivity to that benefit of the common good.  Actions that could be taken are those such as a government award, where there is a large cash prize for any firm that develops a successful coronavirus vaccine. If planned well, such a prize could provide adequate incentives for private firms to make the necessary investments.

Another option that could be implemented especially considering the imminent threat to public health in multiple jurisdictions would be that of a compulsory license. This is when the government allows other firms/manufacturers to produce a patented product without the consent of the patent owner. In whatever decision is made, health ministries and courts should feel no qualms in setting appropriate limits to patent exclusivity in cases where the public interest so strongly requires immediate and affordable access to a certain medicine.

Coronavirus’s impact on trademarks

As the previous paragraph showed, private interests can provide a barrier to public problems. Interestingly trademarks display a reversal of this, where the public problem can affect a trade-marks holders private interest.

The purpose of trade mark law is first and foremost to claim exclusive use of a designation to indicate the origin of certain goods or services. However as it being shown with the Coranavirus, the associated with a specific company may become a curse rather than a blessing. For example it has been reported that Corona beer has seen a sharp drop in sales as a result of negative associations with the virus.Of course, the news about the declining sales may end up helping the brand. It will be interesting to see the marketing tactics used by Corona to turn the negative attention around.

Conclusion

While patents are an essential component of the pharmaceutical industry in driving innovation and research, it should never outweigh actual lives of patients. When a cure/vaccine is eventually discovered, the first matter of action should be getting it to the countries suffering the worst outbreaks, not deciding the earning potential of the patentee. This further supports why a prize might be in the best solution in this case, as it would ensure the invention is fairly awarded but also fairly available.

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Coranavirus and its relationship with IP exclusivity

With the global shutdown that has occurred due to COVID-19, its presence has caused long-lasting effects in all aspects of our lives and t...