Compulsory Licences: The Key To Accessing Inventions In The Face Of Coronavirus?

Published date02 June 2020
AuthorMs Ellie Purnell
Subject MatterIntellectual Property, Coronavirus (COVID-19), Licensing & Syndication, Patent, Government Measures
Law FirmHGF Ltd

The current coronavirus pandemic provides a unique opportunity for the life sciences sector to invent, and to do so on an international scale. The race is on to develop a vaccine, effective therapies, and accurate tests for the virus required by every country in the world, but such innovations typically take years to discover and refine. The only way to move quicker in such research is to collaborate and cooperate to provide resources and expertise as needed, but this provides significant challenges for intellectual property (IP).

Individual companies that conduct research and development in the life sciences field are generally highly protective of their intellectual property, perhaps more so than other fields, because inventions can take decades to come to market and require such an enormous amount of investment in R&D. A typical vaccine takes around 10-15 years to come to market after being invented, protected, and then tested through clinical trials. This is a complex and costly procedure which leads R&D companies to rely on patents to secure their monopoly and ensure income when the product finally reaches fruition. These companies usually file a high number of patent applications, closely monitor competitors activities, and are active in enforcing their patents. Collaborations do take place, but are unfortunately slow to occur, requiring extensive agreements and funding.

Whilst patent applications are being filed around coronavirus technologies, the sudden need for solutions to this pandemic crisis has prompted many companies to take a different approach. A huge number of collaborations and co-operations are already underway, with protection of IP seemingly taking a back seat. Not only that, but companies and governments are acting to waive pre-existing IP rights. Such an "opensource" style research and access to otherwise patent protected IP is unprecedented.

Many patent laws around the world have provisions for times in which an invention under patent protection is so necessary, that the exclusivity provided by the patent can be removed. Such provisions are known as compulsory licences. Compulsory licences are a means by which a government can authorise third parties to make, sell, or use a patented invention. They are not a common occurrence. In the UK, the Intellectual Property Office receives less than one application for a compulsory licence per year, and even fewer are granted. Section 48 of the UK Patents Act 1 defines the requirements for...

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