[Ip-health] Jacob Schindler from IAM, on compulsory licensing, China and COVID-19 vaccine

James Love james.love at keionline.org
Mon Jun 1 04:48:10 PDT 2020

Some things in this article I had not heard before, including that "senior
Chinese officials sought to assure the international community that strong
pharma patents were crucial to the covid-19 fight."

China was one of several countries notably missing from the Friday launch
of the WHO COVID-19 Technology Access Pool (C-TAP).  (WHO now has a page
for C-TAP, here:

IAM also claims that Oxford University has told them "directly" that "its
baseline policy will be to offer non-exclusive, royalty-free licences to
support free, at-cost or limited margin supply," which may or may not be
true now.



Politics look set to trump patents in China’s coronavirus vaccine effort
Jacob Schindler, Asia editor

30 May

Politics look set to trump patents in China’s coronavirus vaccine effort
With hundreds of thousands dead, tens of millions suddenly out of work and
the global economy at a standstill, the covid-19 crisis is like something a
law professor might draw up in a seminar room as a background scenario for
the compulsory licensing of a new vaccine. So, it is no surprise that the
sparingly used legal mechanism, which lets governments effectively suspend
a patent right while compensating its owner, is having a big moment.

As IAM’s Adam Houldsworth pointed out in a roundup last week, politicians
around the world are increasingly talking about the policy tool, which in
normal times could create significant political pushback. Governments
including those in Canada, Germany and France have passed measures that
pave the way for rapid state action. The European Parliament and various
NGOs have also put compulsory licensing at the centre of their policy
responses to the virus crisis.

Also last week, the World Health Organisation passed a resolution on
covid-19 that reaffirmed the TRIPS flexibilities that allow for the waiving
of patent rights. The United States looked diplomatically isolated in
objecting to the inclusion of that language in the measure, which was
ultimately adopted by consensus.

Pair that unprecedented level of political will with a seeming lack of
industry buy-in, and you may have the recipe for compulsory measures to be
taken. Just yesterday, the WHO launched an IP pool aimed at facilitating
voluntary collaboration among companies and research labs to a tepid
reaction from major drugmakers, which are resistant to a
‘one-size-fits-all’ approach to setting aside IP rights.

The threat of so-called ‘vaccine nationalism’ adds further fuel to fears
that governments may need to intervene to ensure their citizens have access
to any proven vaccine or treatment.

A compulsory licence issued to a successful covid-19 vaccine, especially if
it occurred in a rich economy with a strong patent system, would instantly
become one of the most significant IP stories of our time, especially if it
plays out in contentious circumstances. It could turn an obscure legal
concept into a global talking point overnight.

But there are a few reasons to think that compulsory licensing’s big moment
won’t arrive after all - and one of them is recent developments in China.

According to a recent survey of the field by the Cornell Alliance for
Science, China is home to two of the four most promising vaccine
development efforts. CanSino’s adenovirus vaccine is one of the furthest
along in terms of trials, while another company, Sinovac, is preparing an
inactivated virus vaccine, considered one of the safest routes to a working

Chinese companies are not known as powerhouse of pharmaceutical innovation,
so how they might approach patents and pricing for a vaccine is not certain.

After early reports that a state-linked lab in Wuhan may be stepping on
Gilead’s patent rights in antiviral remdesivir, senior Chinese officials
sought to assure the international community that strong pharma patents
were crucial to the covid-19 fight. Given the intense scrutiny of China’s
IP regime and global anger over its role as the source of the virus, it is
hard to imagine China going the compulsory licensing route with a foreign
vaccine unless it is absolutely forced to.

In terms of its domestic efforts, the best indication yet of China’s stance
came straight from the top when Xi Jinping addressed the World Health
Organisation last week. Xi said that a coronavirus vaccine developed in
China would be treated as a “global public good”. It is not hard to see
politically why China would want a CanSino or Sinovac vaccine spread far
and wide and cheap, and it is a safe bet that the companies from China will
be taking that on board if they are in a position to license out a
groundbreaking innovation – no legal coercion needed.

That’s not to say that compulsory licensing will be necessary if a
non-Chinese firm is the first to find success. IAM readers have heard
directly from another top vaccine contender, Oxford University, that its
baseline policy will be to offer non-exclusive, royalty-free licences to
support free, at-cost or limited margin supply. Many other academic
institutions and leading pharmaceutical firms have made a variety of
voluntary commitments.

More than anything, though, we might not see a headline-grabbing compulsory
licence in a major jurisdiction because patent owners will be keenly aware
of how damaging it could be to their interests in the long run. Any deals
that happen will certainly be negotiated in the shadow of compulsory
licensing law – but it may be best for everyone if those laws don’t need to
be invoked.

If a Chinese firm is first to come out with a vaccine, you can be sure it
will generate lots of controversy – but it probably won’t be about
restrictive patents and high prices. Despite the ambiguous message that
sends about the value of patent rights, pharmaceutical IP owners would
probably be pretty grateful for that.

Jacob Schindler
Author | Asia editor

jacob.schindler at lbresearch.com

James Love.  Knowledge Ecology International
U.S. Mobile +1.202.361.3040
U.S. office phone +1.202.332.2670
http://www.keionline.org <http://www.keionline.org/donate.html>

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