April 10, 2020

Alternative Patent-Related Approaches to Promote Innovation to Combat COVID-19

Several initiatives and efforts have recently been introduced to spur production of needed products and encourage innovation to combat COVID-19 by either requesting or requiring a patent holder to refrain from asserting its patents in the event a relevant technology can be used to fight the COVID-19 pandemic. Innovators looking to help in the global COVID-19 response may consider getting involved in or supporting these ongoing initiatives.

The Open COVID Pledge

One initiative is The Open COVID Pledge. The Pledge is a commitment by intellectual property owners to make their IP available to others (by free and temporary license agreements) for the purpose of encouraging development and deployment of technologies — such as diagnostics, vaccines, therapeutics and medical equipment — capable of mitigating or ending the COVID-19 pandemic.

The IP owners making the Pledge are, in essence, licensing their IP to anyone to fight the COVID-19 pandemic. The licenses are a temporary grant of rights that would last until one year after the World Health Organization declares that the COVID-19 pandemic has ended. Those looking to benefit from the license should recognize that not all IP is immediately or automatically part of the license. Thus, to be safe, they will have to obtain separate rights from all holders of IP to which the user’s product or service relates to the extent those IP owners have not taken the Pledge. That said however, the hope of the developers of the Pledge is that all major holders of COVID-related IP will adopt the Pledge, making the production of these technologies free from IP risk. After the pandemic is over, it is also the hope of the Pledge developers that participating organizations and companies will make the underlying IP available via reasonable future licensing agreements.

Facilitating Innovation to Fight Coronavirus Act

Another initiative is a bill proposed by Senator Ben Sasse (R-NE) entitled the Facilitating Innovation to Fight Coronavirus Act. The bill, among other things, proposes suspending the commencement of the term of any newly issued patents directed to treating COVID-19 until the corresponding national emergency is declared to be over by the President. As such, a holder of such patents could not enforce their rights during the emergency. However, the proposed bill attempts to compensate the patent holder by extending the term of the patent by 10 years (in addition to the typical term of 20 years from filing). This patent term extension has been viewed as potentially impractical to implement as well as opportunistic by some commentators.

The Medicines Patent Pool and Unitaid

In the third and more global initiative, the Medicines Patent Pool and Unitaid announced late last week that COVID-19 medicines and diagnostics would be included in the organizations’ patent pool to ensure access by the most vulnerable populations. On April 6, the WHO endorsed the creation of a voluntary pool of patent rights involving diagnostic tests, medicines and vaccines, with free access or licensing on reasonable terms for all countries.

We have also noticed that companies have independently taken it upon themselves to open their IP portfolios in an effort to contain the current pandemic. AbbVie, for example, has declared that it will not enforce its global patent rights on all formulations of HIV medication Kaletra (Aluvia). The drug is being evaluated for its ability to treat severe COVID-19.

As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.

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