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Innovative Relationship of Patents & Business Entities During Crisis

September 1, 2020

By Sukku and Abin T. Sam

INTRODUCTION

Intellectual property has always driven business entities around the globe to innovate and prove its mark in the dynamic environment. IP has played a major role in promoting research and development to stay ahead of the hefty competition. Patent can be understood as an  exclusive right granted to the inventor in lieu of his or her innovative work, which permits the right holder to bar others from exploiting the right for specified period of time.

In the present situation of Covid-19 outbreak, the commercial world is almost at a halt and barely holding on to survive. In  times like this, , where all aspects of future such as economic, social and developmental will be affected, it is intellectual property that will gleam and emerge as a savior and a helping hand for all. In this particular article, the focus will be on the patent regime and its contributions to help the companies grow and survive in the long run.

It has been rightly said, “unprecedented time calls for unprecedented measures”, the pandemic has created an unprecedented situation which needs to be addressed and further analyzed as to how the companies can utilize this time and their intellectual resources to remain afloat and survive in the long run, as a lot of novel inventions currently in the form of new technologies, medical devices and medical products are protected via the patent regime. This would further enable the business entities towards a more secure market position and ensure financial return in the future from third party users in the form of compulsory licensing as well. Under the Patent regime,  there are numerous bonuses that would ensure the growth of a business entities even in such downtrodden time.

  • Firstly, it enables one party to have a negotiating tactic by having an upper hand if it decides to take the route of amalgamation to survive, as great consideration is given to the research and development wing of business entities and its holding in the form of IP assets.
  • Secondly, it provides necessary protection to the research and development wing of business entities as to encourage inventions and innovations. Adequate protection of the R&D wing is advisable as it is usually one of the factors that leads to the inflow of investment.
  • Thirdly, even though COVID-19 has led to a lockdown situation and closure of all commercial activities, the positive side of it can be looked as a much-needed time to introspect into its own inventions and come further ahead of the competition.

Open COVID Pledge

A global collaboration in the form of Open Covid Pledge[1] has been introduced which enlists a number of patent holders who have made their inventions available free of charge for use towards the impact minimization and eradication of the COVID-19.

The coalition of the Covid Pledge has been created in the form of license, the participants or the Corporation may avail to fulfill the pledge. The Pledger/Corporation provides or grants access to a non-exclusive patent with no royalty across the globe without the need or hassle of a sub license. Pledges and open licensing at such a time of need can spur innovation. The patent regime has been developed and designed to promote progress; as it should not be used to exploit the innovation at the cost of people’s live hence the Open Covid Pledge enables the organization to freely adopt and combine the innovations with their ideas against this infectious disease. As a majority of the member nations under WIPO have made an attempt to revise and relax their licensing and regulatory measures while trying to fight this deadly infection as they might also have to fight against the attempts of establishing monopoly by various companies over a product and privatization of certain sectors, which is the need of this hour for as well.

BUSINESS ENTITIES TOGETHER IN THE FIGHT AGAINST COVID-19

Big giants have voluntarily attempted to implement a raft of measures to ease the crisis, such as,

  • AbbVie[2], a pharmaceutical giant has iterated that it will no longer enforce patents in regard to Kaletra drug throughout the globe all for its formulations,
  • Likewise, Amazon has provided free access to its patents and further access to the WHO the cloud technologies and technological expertise for tracking of the infection corona,
  • Gilead Sciences[3] in reference to its orphan drug designation granted for the investigational antiviral drug Remdesivir has approached the Food and drug administration to rescind it and similarly, it has entered into a non–exclusive licensing agreement for manufacture and distribution of the drug Remdesivir, a potential therapy for COVID – 19 with five generic pharmaceutical manufacturers based in India and Pakistan namely, Cipla Ltd., Ferozsons Laboratories, Hetero Labs Ltd., Jubilant Lifesciences and Mylan,[4]
  • Hewlett Packard Enterprise[5] has enabled free access to its patented technologies for diagnosing, preventing, containing and treating of Covid-19. In addition, it also provided access to supercomputing software applications, computing and storage systems to advance diagnosis and treatment of COVID – 19[6].
  • IBM[7] has enabled free access of its intellectual property assets for researchers and scientists that enumerates upon anti-viral agents and methods of treatment by the use of these agents that relates to COVID-19 treatment. Additional access has also been provided with reference to a patent that uses ultraviolet light for pathogen mitigation and algorithms to predict the time and range of events, including epidemics,
  • Intel Corporation[8]has also provided free access to more than 72000 patents for the purpose of research on COVID – 19.
  • Novartis too has provided access to a set of compounds from its libraries that are considered suitable for in vitro antiviral testing. OxyGEN being a collaborative hardware project has launched an open source, low cost and low tech respirator for mass production and Sandia National Laboratories has also provided access to its technology patents for free of cost and non-exclusive commercial licensing, patent catalogue inclusive of more than thousand technologies which have been mostly developed for use in biotech, supply chain, cyber security sectors and manufacturing[9].
  • Similarly, Medtronic, a leading medical device company shared its design specifications for ventilators to speed up and accelerate the manufacture of ventilators to help doctors and patients fighting the COVID-19 pandemic.

Giant Corporations, International Agencies and nations all over the world are facilitating their patents to contribute towards positive outcomes and fight against COVID – 19. The United States of America has made an attempt to fast track its process of registration for small or micro entity so as to ensure growth and development of both the nation and the economies as earlier the standard time for process had been fifteen months but it has been revised and attempted to be completed within months as few as six and in addition to it there will be no extra charge[10].

The business entities, which are attempting to discover the vaccine of the said infection in question, must realize their social responsibility towards the mankind at large and perform it without taking into the factor of profit consideration as it is essential that the vaccine is available to every economy whether strong or weak and every individual irrespective of their economic spending.

Remedies that could be availed by the Government in such times

Even though the inventor has an exclusive right over the invention under the Patents Act, there are certain remedies available with the Central Government and the Patent Authorities to ensure that the Patent is accessible to all:

  • Firstly, under the Bolar Exemption in reference to Section 107A of the said act a generic company has the right to conduct research on an already patented drug for development of data and claim regulatory approvals so that after the expiry of the said patent a new and modified invention is already ready to take place.
  • Secondly, under Section 84 of the Patent Act, 1970, compulsory license can be granted on a request made by any person to the Controller for usage of the patent with the permission of the patentee after the three-year period has lapsed.
  • Thirdly, in reference to Section 92 of the said act the Central Government has the right to access any patent under a national emergency or other circumstances which it deems fit and Covid – 19 could be example of that as the government can grant a compulsory license under the said section even without the expiry of mandatory and statutory three year period.
  • Fourthly, in reference to Section 100 of the said act the central government can use and refer to the invention for its own purposes and further sell off the same on a noncommercial basis as well.
  • Fifthly, in reference to Section 66 of the said act the central government has the power to revoke a patent under public interest if the patent itself or it’s mode of execution is mischievous in nature or further it can be revoked as well if it is prejudicial towards the public or security of the state.

Similarly the Hon’ble Delhi High Court has under Merck v. Glenmark[11] iterated that, in consideration of life saving drugs public interest has to be upheld[12].

International organizations like WHO, WTO and WIPO shall also consider extending support to nations urging immediate attention and if need be also consider suspending the enforcement of intellectual property rights that may pose as an obstacle in procuring the products and devices necessary to protect mankind against this deadly contagion.

Also read- COVID, VENTILATORS & PATENTS

[1]https://opencovidpledge.org

[2] WIPO,Covid Policy Tracker, Corpoeration, AbbVie (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[3]WIPO, Covid Policy Tracker, Corpoeration, Gilead Sciences (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[4] https://www.gilead.com/purpose/advancing-global-health/covid-19/voluntary-licensing-agreements-for-remdesivir

[5]WIPO, Covid Policy Tracker, Corpoeration, Hewlertt Packard Enterprise (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

WIPO COVID – 19 IP Policy tracker Corporation https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[7]WIPO, Covid Policy Tracker, Corpoeration, IBM (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[8]WIPO, Covid Policy Tracker, Corpoeration, Intel (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[9] WIPO COVID – 19 IP Policy tracker https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[10]Covid related U.S. patents get fast track for small businesses, Susan Decker, Bloomberg, May 08, 2020 https://www.bloombergquint.com/onweb/covid-related-u-s-patents-to-be-fast-tracked-for-small-business

[11] FAO (OS) 190/2013

[12] Patents and Covid – 19 Strategies for patentees generics and the Indian Government, Aditya Gupta, Lexology

 

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