Copyright concept with businesswoman using a tablet

Open COVID pledge – can it deliver results or is it a nice idea best accepted as an aspirational, marketing tool?

Malcolm Campbell ||

A coalition of more than 350 civil society organisations, academics, and researchers have urged the World Intellectual Property Organisation (WIPO) to ensure that IP is a “support and not a hindrance” as the world attempts to overcome the COVID-19 crisis.

WIPO is currently under pressure to support the “Open COVID Pledge”, an initiative launched by leading research institutions including Harvard, MIT Kopenhagen University and Stanford urging companies to free their IP. A number of companies including Intel have followed suit. The Open COVID Pledge requires participants to publicly sign up and reproduce on their website the official pledge:

We therefore pledge to make our intellectual property available free of charge for use in ending the COVID-19 pandemic and minimizing the impact of the disease.

But what does that statement really encompass? It is so vague that it appears to raise more questions than answers. What is the IP to be made available – existing or developed or both? And what is meant by ‘for use in ending’ or ‘minimizing the impact’ of COVID-19?

One reading of the statement suggests that existing IP owned by participants could be used for the purposes of research directed at finding and developing a vaccine but what about the ultimate outcome? Who will own it?

Anyone versed in patent law knows that a main pillar of the system is that the invention disclosed by a patent application or as granted is ‘novel’. That is, the inventive features of the invention cannot have been published by document or act prior to application. But is this appropriate in the race for a COVID-19 vaccine?

While it would be nice to imagine that the researchers working night and day to develop a COVID-19 vaccine have nothing more than restoring our way of life on their plate, the reality is that the work costs money and typically the research institutes (public or private) will be (should be) thinking about ownership and commercialisation and that means the requirements of patent law and the nuances that exist between countries. Arguably, never before has harmonisation been so important to facilitate the fastest possible outcome to ensure a vaccine is not delayed in getting to the public due to the technicalities of patent law. The question becomes if we move away from the usual novelty requirements, what would be the compromise?

And then there’s the question of what could be protected. The Australian Patents Act, like many around the world, exclude the protection of by patent of ‘biological material’.

COVID-19 is currently understood to be a wild type of virus strain i.e. naturally occurring biological material. Typically, a virus found in nature will not be patentable subject matter. So, do we divert our research to accommodate the patent law to create a patentable, commercial vaccine or not? Genetic modification may be able to deliver a patentable product. The question is whether that requires a whole other process to be undertaken, and if it will impact on timing to deliver an available vaccine.

With time of the essence, we look to the World Health Organisation (WHO) and WIPO to show leadership,  and while altruistic pledges of our leading institutions is important and should be supported, the aspiration is not the end. The details need to be considered and refined to achieve the dream.

Share:

Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.

Categories
Archives
Author

More posts

Essential terms of a commercial lease

A commercial lease is a contract that details the rights and obligations of a tenant and landlord. So, what are the necessary terms of a commercial lease?

Responding to data breaches

In the final part of our four-part series on your business’ responsibilities related to cyber attacks and data breaches, Special Counsel John Bennett how businesses should respond to data breaches, including application and requirements of the Notifiable Data Breaches Scheme.

Security of personal information

Part 3 of a four-part series on your business’ responsibilities related to cyber attacks and data breaches where Special Counsel, John Bennett provides an overview of some court decisions and proceedings where ‘security’ of personal information has come into issue.

Parental alienation in Family Law

The concept, Parental Alienation Syndrome, was initially brought about by American psychiatrist Richard Gardner in 1985. The term parental alienation is used to describe a situation where one parent is involved in psychologically manipulating their child to turn against the other parent.

Are you liable for labour hire workers if they are injured?

Many employers (host employers) engage employees of labour hire companies, particularly in the building and construction, hospitality and manufacturing industries. However, what happens when one of these employees gets injured at the host employer’s work site? Who is liable for the injuries?

The risks with cyber attacks and data breaches

Part 1 of a four-part series on your business’ responsibilities related to cyber attacks and data breaches. Cyber attacks and data breaches are the top business risk in Australia according to Aon’s 2023 Global Risk Management Survey.

Help! My builder won’t finish the job – what do I do?

It’s normal for building projects to experience setbacks during construction.  However, in extreme cases your builder may suspend works and leave the site or disappear without explanation. This article will explain your available options if your builder won’t return to the site, and how to avoid the common pitfalls which may affect your rights against your builder.

© 2024 Coleman Greig Lawyers  |  Sitemap  |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230