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9 June 2020AmericasSarah Morgan

BIO 2020: IP’s vital role in COVID-19 fight, potential ‘chaos’ of pooling

Concerns that IP is hindering the development of tools to fight the COVID-19 are unfounded, and now is the time that we need IP the most, according to big pharma representatives.

During  BIO Digital (which is taking place June 8 to 12), executives from Novartis, Johnson & Johnson and the Biotechnology Innovation Organization (BIO) took part in a panel session—“Patents in the Time of Covid-19: Innovation and Access to Medicine now and for the future”.

Moderated by Ute Kilger, partner at  Boehmert & Boehmert, the session covered the vital role IP is playing during the pandemic and whether compulsory licensing and patent pools are viable options.

Opening the session, Kilger said: “COVID-19 will change our lives forever. It has put an additional challenge on the biotech and pharma industry. At the same time, it could be the finest hour of our industry.”

But some have called for a ban on patents for drugs, tests or vaccines targeted at the disease, concerned that “pharma could profit on the pandemic”, she said, adding that others worry that IP will hinder access to affordable COVID-19 medicines.

What is the role of IP during pandemic times?

“I certainly think the role of IP in this time is similar to other times, which is to encourage innovation to solve large unmet medical needs in the biopharmaceutical industry,” said Robert DeBerardine, chief IP counsel at  Johnson & Johnson.

He added that IP has had this role for decades and the reason that we have so many things to test and to use in trying to deal with the COVID-19 situation is because of the role IP has played in the past and will play in the future.

In agreement, Corey Salsberg, vice president, global head of IP affairs at  Novartis, said that he hadn’t heard any good rationale for why we wouldn’t need IP during the pandemic and that “IP is playing exactly the role we want it to play”.

“I would strongly argue … now is the time really when we need it most. The two things that are going to get us out of this pandemic from the scientific perspective are innovation and collaboration,” he added.

According to Salsburg, the industry is collaborating at unprecedented levels because of IP, “which not only enables us to identify the right players and the right partners with the right assets, but also creates the conditions that we need to be able to actually contribute and participate in those collaborations”.

He added that many companies have come forward, agreeing in advance to make voluntary licensing commitments. For example, Novartis has  pledged to make its hydroxychloroquine IP available to support broad access if the medicine is approved for COVID-19.

Ravi Mehrota, a Wall Street biotechnology analyst, added that we are clearly in very exceptional times.

He said: “The industry, together with governments, have certainly used very different pathways in research, development and regulatory methods right now. And I would expect the same for IP going forward for this specific disease.”

Compulsory licensing

Moving on, Kilger added that some countries have turned to compulsory licensing. In March, Canada amended its Patent Act, giving the minister of health the powers to seek authorisation for manufacturers to produce patented inventions.

Salsberg contended that compulsory licensing is a solution that has never been shown to work.

“[It’s] a mechanism that basically transfers one thing, only the IP right. It doesn't give you the know-how, the capacity and the ability to necessarily make a medicine and it certainly doesn’t transfer that ability to do it quickly,” he said.

According to the Novartis executive, it makes perfect sense from a practical perspective to go to the rights holder first and try to make it part of this solution instead of taking the IP right and giving it to others “who have no experience and no capacity to actually get it up to speed enough to scale quickly”.

DeBerardine added that he didn’t see any theoretical need for compulsory licensing, given the representations that all of society, including the biopharmaceutical industry, have made to solve this problem.

In late May, the World Health Organization (WHO) launched a COVID-19 technology pool, supported by 37 countries and multiple international partners and institutions.

But, the leaders of some of the world’s largest pharma companies appear to be resistant to the pool, as  reported by LSIPR last week.

It’s a similar story during this session. Hans Sauer, deputy general counsel for IP at BIO, added that when the organisation has asked its companies their thoughts on patent pools, the companies claim that they’re already pooling their IP.

“It would make no sense is what we're hearing from our companies, to indiscriminately disseminate our IP to anybody who wants to use it. That won’t accelerate anything,” he added.

Companies are obtaining access to each other’s technology within the confines of research and development programmes they’re collaborating on. “That is a form of IP cooperation that, on a practical level, doesn’t operate all that differently from what’s supposed to be by these patent pools,” said Sauer.

He concluded: “There's a finite supply ... of products, and it will not help to give away IP for everybody to operate in this space and create the potential for chaos in the distribution or supply chain.”

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2 March 2021   Thom Tillis, ranking member of the senate IP subcommittee, has urged US president Joe Biden to oppose ‘harmful’ proposals to waive rights related to COVID-19 vaccines currently in discussions at the World Trade Organisation.

More on this story

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