During the current health crisis, it is doubtful that many companies have been able to operate under the “business as usual” approach. With the closure of non-essential stores, the extra protections put in place for grocery stores and pharmacies that remain open, and the never-ending hours for frontline workers tending to sick individuals, so many business models have had to adapt to the current health conditions. While intellectual property (IP) strategy does not seem paramount in this climate, for one particular industry, it is still crucial.

Drug manufacturers are currently under pressure to forgo their patent rights to provide “potentially life-saving treatments and vaccines for Coronavirus”. The World Health Organization (WHO) welcomed a proposal from Costa Rica, which suggests that companies should voluntarily pool their IP for medical interventions. This would allow governments and generic drug manufacturers to sell the products at lower prices and provide solutions that may have otherwise been inaccessible.  

This is not the first time that pooling IP resources has been suggested as a response to health crises. One past example is UNITAID’s patent pool. This patent pool was created in 2006 to address HIV/AIDS medicines. Multiple patents which were required to create treatments were owned by different companies. By creating a pool, the companies could effectively combine several medicines into one tablet, therefore making it easier for patients to receive treatment. Patent pools were also used as a response to Severe Acute Respiratory Syndrome (SARS).

Costa Rica’s proposed patent pool would be a global resource, not just one that aids low-income countries. While patent pooling could have the negative effect of creating anticompetitive behaviour in this market, it is important to remember the benefits that could potentially save lives. For example, creating a pool is a one-stop shop for licensing from several companies and it could prevent stacking licenses, which occurs when the owner of a patented invention used in upstream research is granted rights in subsequent downstream innovations. Nonetheless, establishing a patent pool is a long, complex process which requires companies’ willingness to participate.

In relation to COVID-19, there are several companies researching the development of new vaccines and the usefulness of existing treatments, such as Gilead Sciences and Abbvie. While countries like Costa Rica are looking for an opportunity to encourage solidarity and create a humanitarian approach, some countries like Germany, Canada, Australia, Chile, and Israel have considered the role compulsory licensing could play in helping fight the disease. Instead of waiting on companies to voluntarily create a pool, compulsory licensing would effectively ignore the monopoly rights granted to patent owners and give generic drug manufacturers a license to produce the treatment. While both approaches have strengths and weaknesses, the compulsory licensing method could be helpful as a timely response given the rapid spread of this unprecedented virus.

At this point, there is a mixed response to how different countries are treating protections for innovations related to the virus. A more unified approach to pool IP resources to create a group of willing innovators could be a game changer.

Written by Summer Lewis, a second year JD Candidate at Osgoode Hall Law School. Summer is also the Content Editor of the IPilogue.