New working paper focusing on IP challenges during the Covid-19 pandemic

A pandemic calls for large-scale action across sectors in order to mobilise resources to develop and manufacture crisis-critical products as efficiently as possible, in the huge quantities needed. This include digital innovations ranging from complex epidemiological models, artificial intelligence (AI) methodologies, to open data platforms for prevention, diagnostic and treatment.

Amongst the many challenges during a pandemic, innovation stakeholders and manufacturing firms find themselves suddenly engaged in new relationships, possibly even with firms that have been competitors prior to the pandemic. Those stakeholders are thus likely to face intellectual property (IP) related challenges. To governmental decision makers these challenges might not appear to be of paramount urgency compared to the many, huge operational challenges to deploy urgently needed resources. However, if IP challenges are considered too late, they may cause delays to urgently mobilising resources effectively. Manufacturing firms could be reluctant to fully engage in the development and mass manufacturing of crisis-critical products.

This paper adopts an IP perspective on the currently unfolding COVID-19 pandemic to identify pandemic related IP challenges. The focus is predominantly on technical aspects related to research, development and urgent upscaling of capacity to manufacture crisis-critical products in the huge volumes suddenly in demand. Its purpose is to provide a structure for those concerned with steering clear of IP challenges to avoid delays in fighting a pandemic.

From an ad-hoc patent analysis we identify that the majority of COVID-19 related patents in the field are around organic chemistry, and the development of methodologies and drugs for the prevention, diagnosis and treatment of viruses. We also identify a time-lag between the outbreak and the materialisation of patent applications, which is consistent with the processes of the Patent Office. The large number of references to non-patent literature published after outbreaks is also an indication of the urgency of scientists to put the information in the public domain and make them accessible quickly to a wider audience.

We identify four stakeholder groups that are particularly concerned with IP related challenges during a pandemic. These include (i) governments, (ii) manufacturing firms owning existing crisis-critical IP (incumbents in crisis-critical sectors), (iii) manufacturing firms normally not producing crisis-critical products suddenly rushing into crisis-critical sectors to support the manufacturing of crisis-critical products in the quantities that far exceed incumbents’ production capacities and (iv) voluntary grassroot initiatives that are formed during a pandemic, often by highly skilled engineers and scientists to contribute to the development and dissemination of crisis-critical products.

This paper discusses IP challenges faced by those stakeholders during a pandemic related to the development and manufacturing of technologies and products for (i) prevention (of spread), (ii) diagnosis of infected patients and (iii) the development of treatments. We offer an initial discussion of potential response measures to reduce IP associated risks among industrial stakeholders during a pandemic.

We identify and analyse three scenarios in which different considerations around IP emerge. In the first scenario manufacturing firms enter Crisis-Critical Sectors to assist incumbents in mass manufacturing the volume required of Crisis-Critical Products. Those firms possess complementary capabilities and resources, so they can repurpose production lines. In the second scenario we discuss IP considerations when voluntary grassroot initiatives enter Crisis-Critical Sectors. In the third scenario we discuss R&D and manufacturing engagements and IP considerations for the incumbents in the CC-Sectors. We finally provide an initial discussion of three possible approaches to address IP concerns during a pandemic, namely compulsory licensing, IP pledges and IP pooling.