[Ip-health] KEI and Public Citizen letter to Congress regarding Costa Rica proposal for WHO COVID-19 pool of rights in technology and data | Knowledge Ecology International

James Love james.love at keionline.org
Tue Mar 31 08:45:13 PDT 2020

The following is a letter that KEI and Public Citizen sent to Congressional
leadership on March 26, 2020, supporting the proposal by the President of
Costa Rica to the World Health Organization to create a pool for rights in
technology and data related to the prevention, detection and treatment of
the coronavirus/COVID-19 pandemic.



March 26, 2020

Senators Mitch McConnell and Charles Schumer
Representatives Nancy Pelosi and Kevin McCarthy

Re: Proposal by the President of Costa Rica to the World Health
Organization to create a pool for rights in technology and data related to
the prevention, detection and treatment of the coronavirus/COVID-19 pandemic

Dear Senators McConnell and Schumer and Representatives Pelosi and McCarthy

KEI and Public Citizen would like to call your attention to an initiative
proposed by the President of Costa Rica, asking the World Health
Organization (WHO) to create a global pool of rights in the data, knowledge
and technologies useful to the prevention, detection and treatment of the
coronavirus/COVID-19 pandemic. [Link] The Director-General of the WHO has
since welcomed the proposal, and joined the call for pooled rights. [Link]

Costa Rica correctly saw this as a pool with a diverse set of rights,
including those relating to patents on inventions and designs, regulatory
test data, and research data including outcomes, know-how, cell lines,
copyrights and blueprints for manufacturing, as these rights relate to
equipment, diagnostic tests, devices, medicines, vaccines, and other
medical tools.

Such a pool would allow for competitive and accelerated production of
needed COVID-19 technologies, and expand the global capacity to address the
need for affordable products.

The inputs to such a pool could come from governments that fund research
and development or buy innovative products, as well as from universities,
research institutes, charities, private companies and individuals who
control rights.

The United States government is funding a significant amount of COVID-19
research and development, but many other governments around the world, such
as Germany, Japan, Canada, France, China, the European Union, the UK and
Australia, are also leading efforts. A pool structure could help ensure
broader access to rights of R&D funded by other governments. This could
result in the quicker national introduction of needed medicines and
vaccines, for example.

This is a moment for governments to demonstrate there will be global
cooperation in fighting the pandemic. The new coronavirus could continue to
pose a threat, with possibilities for mutation and seasonal circulation,
unless it is eradicated globally.

In the new funding authority relating to this pandemic, the U.S. will be
able to use “Other Transactions Authority” (OTA), as well as other
procurement authorities. Among the approaches the United States can take to
expand access and increase the supply of products is to use federal funds
to buy out patent and data rights, and/or to offer incentives like
innovation inducement prices and market entry rewards to delink the
incentives for development from the grants of legal monopolies, in order to
effectively make the R&D a public good. If well-designed and linked to a
reasonable reward, these measures can be very effective in ensuring that
products can be made everywhere and sourced at prices that reflect the
costs of manufacturing.  The benefits of such measures would be global, and
the United States can and should encourage other governments to collaborate
in paying for patent/data rights buyouts or innovation inducement prizes.
Of course, this is just one possible approach to be taken, but it
illustrates how it can be in the U.S. interest to engage other governments
and even private funders of R&D to work toward the sharing of the costs of
public goods.

The Costa Rica proposal is measured, and begins with an initial memorandum
of understanding between governments and other entities funding R&D that
will enable future assignments of rights, with the opportunity to decide on
the specific technologies and terms for assignments later.

Given the need to act quickly, we encourage your office to write Vice
President Mike Pence and Secretary of Health and Human Services Alex Azar
as soon as practicable, to encourage the United States government to
support the Costa Rica proposal.

To be concrete about the next steps, the WHO could be asked to ask funders
of R&D and rights holders to sign a very short agreement, as a first step,
that reads like this:

[Funder, rights holder] agrees to consider requests by the World Health
Organization to obtain a limited assignment of rights in U.S. funded patent
rights for biomedical inventions related to the detection, prevention or
treatment of coronavirus related illnesses for use worldwide in
collaboration with its member states. The terms and conditions associated
with such an assignment, if so granted, will be determined by the
[Funder/Rights holder] The WHO agrees the [Funder/rights holder] is under
no obligation to grant any such requests, but only to consider them.

If signed by the United States, this would enable the United States to
reference this option in funding agreements, under 35 U.S.C. § 202(c)(4),
as well as in CRADAs, Cooperative Agreements, and “Other Transactions
Authority” (OTA) agreements.

Moreover, if the U.S. shows leadership on this, it will be far easier for
the United States to obtain access to rights in data, including clinical
trial test data, inventions and other data and technology rights, funded by
others, including foreign governments, many of whom are also mobilizing
significant resources for new R&D.

Robert Weissman, Public Citizen, James Love, Knowledge Ecology International

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