Patent pools and innovation‐based approach in global healthcare crisis

• Published date: 01 July 2023
• Author: Sherin Priyan,Gouri Gargate
• Date: 01 July 2023
• DOI: http://doi.org/10.1111/jwip.12262

Received: 22 February 2022

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Accepted: 11 January 2023

DOI: 10.1111/jwip.12262

ORIGINAL ARTICLE

Patent pools and innovation‐based approach

in global healthcare crisis

Sherin Priyan |Gouri Gargate

Rajiv Gandhi School of Intellectual Property

Law, IIT Kharagpur, Kharagpur,

West Bengal, India

Correspondence

Gouri Gargate, Rajiv Gandhi School of

Intellectual Property Law, IIT Kharagpur,

Kharagpur, West Bengal, India.

Email: ggouri2012@gmail.com

Abstract

During the COVID 2019 pandemic, the healthcare sector

faced major jurisprudential questions about the intellectual

property system. During this period, the world was in the

midst of a healthcare crisis, wherein the debate between

the reward for innovation versus accessibility to all at

equitable rates have become intense. In a such challenging

scenario, the scientific community were dedicated toward

the research while the healthcare industry was indulging in

arguments over the incentives on creation. In this paper,

the authors, as IP researchers, argue that in a scenario

where there is an intense dispute over innovation versus

accessibility, probably patent pool can serve as a mecha-

nism to handle the tussle. The authors have analyzed a few

patent pool models that were chosen on the basis of the

types of patents in the pool. Additionally, an attempt is

made to scrutinize the laws governing patent pools in

developed countries and developing countries. In doing so,

the authors draw the benefits and limitations of the

patent pools in healthcare. We follow a qualitative research

methodology. The research is based on secondary data and

has some limitations because of this.

KEYWORDS

essential patents, healthcare, incentive theory, IP & jurisprudence,

IP system rationale, patent pools, pharmaceutical industry

J World Intellect Prop. 2023;26:117–141. wileyonlinelibrary.com/journal/jwip © 2023 John Wiley & Sons Ltd.

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1|INTRODUCTION

The first cluster of cases of COVID‐19wasreportedinDecember2019,andtheWorldHealthOrganization

declared it a pandemic in March 2020.

1

The virus has gripped both developing and developed countries, and

the initiatives taken by the countries are no longer regional in their approach or intensity. The open sharing of

genome sequencing and free access to research papers on the subject of the virus helped understand the

gravity of the situation.

2

World Health Organization called for a Solidarity Call for Action to realize equitable

global access to COVID‐19 health technologies for sharing of data, intellectual property (IP), and knowledge

related to it.

3

World Health Organization (WHO) released a draft landscape of COVID‐19 vaccines on

December 8, 2020, which contained information on the clinical evaluation of candidate vaccines.

4

The vaccines

from Pfizer—BioNTech, Moderna, Jansen, and AstraZeneca‐Oxford, and so on, were introduced into themarket

after the Emergency Use Approval in December 2020.

5

Presently, 69.2% of the population has received at least

one dose of the vaccine for COVID but only 22% of the low‐income countries have received the vaccine at

least once.

6

World Trade Organization (WTO) has always emphasized the need for positive efforts to increase

developmental possibilities in developing and least‐developed countries, recognizing the need for emergency

supplies and humanitarian assistance for developing countries.

7

Additionally, the third goal of the sustainable

development goals set by the United Nations (UN) is healthy living and well‐being for all.

8

This provides for a strong

collaboration for an equitable and resilient recovery to overcome the challenges of infrastructural difficulties

and supply shortages.

9

Thus, increased participation from low and middle‐income countries is desired.

10

The

vulnerabilities in the healthcare sector in low‐income countries are particularly exposed in the present times with a

few exceptions, with minimal or no research being directed to the COVID vaccine in these countries.

Therefore, it is the shared responsibility of the developed countries to extend the knowledge base with the

developing countries. One such measure can be the collaborative licensing strategy in the form of patent pools.

Patent pools in the consumer electronics industry are a common and accepted practice with a few established

regulations and of course the usual tussle over licensing fees.

In fact, in relation to the COVID pandemic, on May 29, 2020, WHO accepted this concept of the Technology

Access Pool (C‐TAP), based on the proposal put forward by Costa Rica, a developing country. It formally launched

the voluntary pool intended to collect patent rights, regulatory testing, and shared knowledge for combating—the

pandemic and developing medicines for the same, endorsed by nearly 40 countries.

11

The initiative, however, has

triggered the age‐old debate in the pharmaceutical industry, between access to essential medicines and incentive to

innovate.

12

The rationale behind IP system is maximizing social benefit along with protection of right of the creator to

achieve development of science and technology.

13

Various theories have been proposed and based on the holistic

consideration of the aspects related to it, different types of IP are justified. One of the theories, the incentive

theory, proposes that the patent holders must be rewarded in some manner for their investments in research and

development

14

. On the other hand, the rationale of IP system and the commitment of international bodies like the

World Intellectual Property Organization (WIPO), WHO, and WTO are to provide access to healthcare and medical

technologies to developing countries and this is evidenced by the trilateral cooperation of WHO–WIPO–WTO to

promote access to Medical Technologies and Innovation. The principles of Doha Declaration, since 2001 has been a

guidance document to shape trilateral cooperation between the organizations.

15

The newer variants of the virus

such as Omicron and Delta have reiterated the arguments of scientists and pushers of equitable access to

medicines.

Studies on virology are instrumental in solving the structure of severe acute respiratory syndrome (SARS)‐

coronavirus (COV)‐2 proteins to use them against the COVID‐19 virus. The scientists found that the new COV

proteins were similar to SARS‐COV, the virus that caused the SARS outbreak in 2003. This information was helpful

in purifying and visualizing the structure of the protein.

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PRIYAN AND GARGATE