28 May 2013Asia

WHO issues IP warning over MERS virus

The World Health Organization (WHO) has warned that “no IP will stand in the way of public health actions” amid the spreading of a deadly global virus.

The warning follows a patent dispute over tests on an isolated version of the Middle East Respiratory Syndrome (MERS), a coronavirus responsible for at least 23 deaths since last year.

Dutch research institute Erasmus Medical Center has a patent for testing the virus but officials in Saudi Arabia, where MERS has claimed 18 lives, argue that the virus was first identified there before being shipped to the Netherlands without permission.

Saudi deputy health minister Ziad Memish told the World Health Assembly – the WHO’s senior decision-making body – in Geneva last week that the transfer of the virus to Erasmus delayed the development of a diagnostic test for it.

Erasmus disputes both these claims, saying that the Saudi doctor who first identified the virus merely asked the centre to verify what he had found and that it then developed diagnostic tests instantly.

The centre has defended further Saudi claims that it is not sharing the tests with other laboratories, saying it has sent the test to 40 labs for free under material transfer agreements (MTAs) – which differ from patent licensing deals as no ownership is transferred to the recipient – and it will continue to do so.

The dispute has raised concerns at the WHO, with director-general Margaret Chan telling the Geneva meeting last week that the virus should have been sent to a WHO lab and not been patented by Erasmus.

“I’m very strong on this,” she said. “Making deals between scientists because they want to take IP, because they want to be the world's first to publish in scientific journals ... these are issues we need to address. No IP will stand in the way of public health actions.”

MERS is a great cause for concern at the WHO, according to Chan, who warned in her closing speech in Geneva that too little is known about the virus.

“We do not know where the virus hides in nature. We do not know how people are getting infected. Until we answer these question[s], we are empty-handed when it comes to prevention,” she said.

With the WHO becoming increasingly worried as MERS continues to claim lives, Chan’s comments that IP will not block efforts to protect public health may be viewed as a call to introduce so-called compulsory licences (CLs).

If the virus is classed as a pandemic, said Kevin Noonan, partner at McDonnell Boehnen Hulbert & Berghoff LLP, “all bets would be off” in some countries that compulsory orders would be introduced.

“If I were Erasmus, I would be getting in touch with all government health ministers, especially in industrial countries, about making a vaccine available,” he said.

“That’s because in a public health emergency the university would not want to be seen to be against allowing people to be treated ... IP owners can allay these fears by being up front with governments,” he added.

Under CL orders, a patent owner typically earns a lower royalty than normal, potentially losing huge amounts of predicted revenues. Noonan noted, however, that is currently unclear that Erasmus actually owns a patent directed to the MERS tests; in fact, it only has a pending application.

Erasmus did not respond to a request for comment, but the company told Bloomberg that it was not in any discussions “at this stage” to commercialise the patent and that the patent may never make any money.

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