Patent Pooling during COVID-19

The International Science Collaborations on COVID-19 has a new discussion on the table. The idea of patent pooling.

Costa Rica, one of the countries in the meeting suggested the inkling of pooling the rights to deal with the current pandemic through minimal or at times free, preferably affordable licensing to ensure that the outcomes of efforts by various countries which can be used by one another and especially by those countries which have limited economic resources to deal with this problem. This proposal had received full support from all the other countries except from the UK and the US.

Patent Pooling, according to World Intellectual Property Organisation (WIPO), is defined as an agreement made between two or more patent holders. The agreement licenses the patents to one another or any third party. The main idea is to share the intellectual property rights and also to have a hand in the product.

Generally, patents pooling is done with the objective for necessitating the complex technologies as complementary patents. It is believed to provide productive technical solutions. Such an idea was seen in work in regard to the vaccines which were produced in the present COVID-19 crisis.

The ‘Sewing Machine Combination” made in the year 1856 is recognised to be as the first modern patent pool done in the US.

Patent pooling structures were actively debated and implemented during the SARS outbreak of 2002-03. The same process was also seen during the H5N1 influenza outbreak of 2005, followed by the 2009 H1N1 influenza pandemic.

Patent pooling ensures innovation between companies by minimizing the potential legal issues which arise due to the use of protected concepts of the other. It lowers the transaction costs and allows better process efficiencies as businesses that hold these complementary patents. Such a pooling by effectively agreeing not to sue each other for infringement can result in better and new products in the marketplace.

The International steps towards patent pooling that were taken are the C-TAP, GISAID, MIPP, TRIPS and CBD.

The COVID-19 Technology Access Pool (C-TAP) which is hosted by WHO accumulates all the pledges of commitments made under the Solidarity Call to Action. It is done in order to voluntarily share COVID-19 health technology related data, knowledge and intellectual property.

Global Initiative to Sharing of All Influenza Data (GISAID) promotes the data of rapid sharing of the virus as seen in the case of all influenza viruses and the coronavirus capable of causing COVID19. This also includes genetic sequences data, related clinical data and also the epidemiological data which might be associated with human viruses to be endorsed in public. The geographical and species-specific data is noted. According to this data, in the recent times, around 49,781 genome sequences of the COVID virus have been shared and they have been shared voluntarily by the researchers from all over the world.

Medicines Patent Pool (MPP) has simplified the development of generic drugs. For tuberculosis, HIV and Hepatitis C by allowing them to be sold at an affordable price. MPP is a UN backed public health organisation. It works to increase the access of the drugs and also in the facilitation of development of these life-saving medicines especially for the low- and middle-income countries.

Trade Related Intellectual Property Regime (TRIPS) consents the countries to grant compulsory licences to the selected companies which would work to produce a patented product at the times of such emergencies.

Nagoya Protocol under Convention on Biodiversity (CBD) frames Article 2(e) in the protocol which includes the genetic sequence information. These information forms the basis of all ongoing researches and developments that take place for the COVID-19 treatment and prevention. The Protocol specifically requires the contracting parties to provide the options for access and benefit sharing when the resources could be used for commercial purposes. It indirectly provides the scope for patent pooling.

The concept of ‘patent pooling’ is practically new in India. It primarily focuses to have solutions for the affordable health care.

Indian Patents Act (IPA), 1970 does not either render for any provisions related to formation of such patent pools or provide any guidelines for the same. But at the same time, it neither restrains to create nor denies for the formation of patent pools.

Under this Act, the Central Government on its motion can set up a patent pool by acquiring the patents and inventions required in the public interest. Such an exception only exists in the hands of the authorities and thus, the pooling is particularly viewed as a restrictive practice by Competition Act, 2002 and is claimed to be anti-competitive in nature.