Intellectual Property

Abbas, Muhammad Zaheer, ‘Treatment of the Novel COVID-19: Why Costa Rica’s Proposal for the Creation of a Global Pooling Mechanism Deserves Serious Consideration?’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa049
Abstract: The COVID-19 is causing not only deaths and fear but also economic and social harm across the globe. Lockdowns, travel restrictions, quarantines, social distancing, and other strict public health measures are playing their part in delaying the spread of infection, but a safe and potent vaccine, effective therapeutics, point-of-care diagnostics, and other health products are desperately needed because it may not be practically possible for governments to extend these measures for an indefinite period of time. On March 23, Costa Rica submitted a proposal to the Director-General of the World Health Organization for the creation of a global pooling mechanism in order to facilitate access to and use of intellectual property, trade-secret know-how, regulatory data, cell lines, product blueprints, and other proprietary data for technologies that are useful for the detection, prevention, control, and treatment of the COVID-19 pandemic. This study critically evaluates Costa Rica’s proposal and endeavors to briefly answer the following questions: Why Costa Rica’s proposal deserves serious consideration? To what extent this proposal addresses some of the key concerns related to the COVID-19? To what extent this proposal is practically feasible?

Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture
  • Caroline Ncube, ‘The Musings of a Copyright Scholar working in South Africa: is Copyright Law Supportive of Emergency Remote Teaching?

    Introduction: As we were reminded on twitter recently, The Statute of Anne, the world’s first copyright law, came into effect on April 10, 1710, three centuries and a decade ago. Its title reads in part, “An Act for the Encouragement of Learning…”. The veritable links between copyright and the right to education have been established by several scholars …The Statute of Anne is a forebear of South African copyright law which has its roots in English copyright law … Against this background, this post asks ‘is copyright still true to its original intent and is it supportive of emergency remote teaching in alignment with the right to education?’

  • David Enrique Betancourt Cruz, ‘An Exceptional International Intellectual Property Law Solution for COVID-19: Spurring Innovation to Facilitate Access to Affordable Medicines

    Introduction: There is no doubt about the role international law can play in order to face the current COVID-19 pandemic. The answer is crystal clear: reform the current International Intellectual Property Law regime in order to accelerate innovation and facilitate access to affordable medicines worldwide. This could include examining how to better use the current flexibilities of the patent system so as to allow for more innovation, and effective co-operation/coordination in the scientific world. This unprecedented crisis of international scope offers us a rare opportunity to galvanize support for stronger international co-operation among the World Health Organization (WHO), World Intellectual Property Organization (WIPO), World Trade Organization (WTO), United Nations (UN), G20, and the European Union (EU) – as the top net exporter of pharmaceuticals. Reforming the international patent system and the Trade- Related Aspects of Intellectual Property Rights Agreement (TRIPS) is the type of real and pragmatic solidarity that we need to protect the most vulnerable individuals around the world.

  • Jacquelene Mwangi, ‘COVID-19 and the ‘Unlocking’ of Innovation: Reflections on Law and Innovation in sub-Saharan Africa

    Extract from Introduction: I will reflect on the logics that have obscured innovation namely, international intellectual property law and formal organization of innovation through ‘national innovation systems’. These two combine under the banner of legal modernization and economic growth, and have collectively undermined innovation that does not fit into their premises.

Akl, Jean, ‘Patent Exceptions in the Time of a Pandemic’ (2020) 55(3) les Nouvelles: Journal of the Licensing Executives Society 204–205
Abstract: The blistering race and competition to find a COVID-19 vaccine is ongoing at a very fast pace. Pharmaceutical companies are scurrying to secure a legal monopoly for the treatment, to control the largest market share, and to ensure a considerable return on their investment, since the demand thereon would be immediate, global, and possibly extending for years and decades to come.Whether it is Gilead’s Remdesivir or any other treatment or vaccine that is ultimately found to have a proven curative or preventive outcome, researchers are ramping up their efforts, all while anticipating that a second wave of coronavirus is expected to swipe the globe again, as the Spanish flu did a century ago.

Akpan, Emaediong and Chinonyerem Ememobong, ‘COVID-19 and the Rebirth of Compulsory Licensing: An Examination of the Right to Health Care’ (SSRN Scholarly Paper ID 3606917, 21 May 2020)
Abstract: The COVID-19 epidemic has ravaged nations leaving a high death toll in its wake. This article examines the intellectual property issues that may surround an invention of a vaccine for COVID-19. Chief amongst these issues being compulsory licensing. The compulsory licensing of a COVID-19 vaccine patent was examined with respect to the right to health. International treaties on compulsory licensing and the right to health was discussed as a justification for making vaccines such as that which may be discovered for the COVID-19 available to developing countries like Nigeria. It was discovered that the Nigerian Constitution does not make justiciable the right to health. It was recommended amongst others that the Nigerian State should leave up to its international commitments as contained in treaties signed by making policies that ensure access to health care.

Andrieansjah, Andrieansjah, ‘The Impact of COVID-19 on Intellectual Property Legal System Related to Public Health in Connection with TRIPS Flexibilities in Indonesia’ (2020) 13(2) Indonesian Law Journal 165–191
Abstract: In early 2020, countries in the world was shocked by a new virus called Coronavirus Disease 2019 (COVID-19) including Indonesia. The COVID-19 pandemic gives impact to the legal system, including intellectual property (IP). Trade Related Aspects of Intellectual Property Rights (TRIPS) flexibilities on public health in developing countries: Transition Periods, Compulsory License, Government Use, Parallel Imports, Exceptions to Patent Rights, Exemptions from Patentability, Limits on Data Protection, and Implementation of the Paragraph 6 of the Doha Declaration. Research problems: (1) what are the conditions for implementing the flexibilities of TRIPS in facing COVID-19 pandemic in Indonesia and (2) what are the issues that should be anticipated for future IP legal system relating to public health as a lesson from this COVID-19 Pandemic. Government Use is most effective to be used for encounter COVID-19 Pandemic, and voluntary license is recommended tobe promoted for future approach. The study is using a qualitative literature study.

Asay, Clark D and Stephanie Plamondon Bair, ‘COVID-19 and Its Impact(s) on Innovation’ (2021) Utah Law Review (forthcoming)
Abstract: In previous work, we explored how certain characteristics of adversity are often more conducive to innovation than others. In this Article, prepared as part of the Lee E. Teitelbaum Utah Law Review Symposium—The Law & Ethics of Medical Research, we review some of that work and apply it specifically to the COVID-19 context. We conclude by assessing certain policy implications in light of how the COVID-19 pandemic has both spurred and hindered innovation.

Baachus, James, ‘An Unnecessary Proposal: A WTO Waiver of Intellectual Property Rights for COVID-19 Vaccines’ (Cato Institute, Free Trade Bulletin No 78, 2020)
Abstract: In a sign of their increasing frustration with global efforts to ensure that all people everywhere will have access to COVID-19 vaccines, several developing countries have asked other members of the World Trade Organization (WTO) to join them in a sweeping waiver of the intellectual property (IP) rights relating to those vaccines. Their waiver request raises anew the recurring debate within the WTO over the right balance between the protection of IP rights and access in poorer countries to urgently needed medicines. But the last thing the WTO needs is another debate over perceived trade obstacles to public health.Unless WTO members reach a consensus, the multilateral trading system may be further complicated by a delay like that in resolving the two‐​decades‐​old dispute between developed and developing countries over the compulsory licensing and generic distribution of HIV/AIDS drugs. A new and contentious ‘North‐​South’ political struggle definitely would not be in the interest of the developed countries, the developing countries, the pharmaceutical companies, or the WTO. Certainly it would not be in the interest of the victims and potential victims of COVID-19.

Baker, Brook K, ‘Hamstringing the Health Technology Response to Covid-19: The Burdens of Exclusivity and Policy Solutions’ (2021) 13(2) Northeastern University Law Review 689-731
Abstract: The world was unprepared for COVID-19 despite other recent coronavirus outbreaks and despite multiple warnings from the World Health Organization (WHO) and others. Although there was an initial sharing of research among scientists and an unleashing of significant public, charitable, and private funding to develop, test, and expand manufacturing capacity of new COVID-19-related medicines, vaccines, and diagnostics, the status quo of exclusive rights ownership and commercial control by the multinational biopharmaceutical industry continues unabated. Existing intellectual property rules that allow private entities to maintain monopoly rights over the development, clinical testing, regulatory approval, pricing, supply, and distribution of essential medical products have not been altered. And the determination of rich countries to secure preferential and disproportionate access to proven and promising vaccines, medicines, diagnostics, and personal protective equipment remains unchanged. In place of open science and coordinated clinical trials, scientific rigor in regulatory assessment and broad regulatory approval, low-cost pricing and rational expansion of manufacturing capacity, and equitable global access to all needed COVID-19 health products, we have needlessly high prices, inadequate supplies, and nationalistic hoarding, especially, but not exclusively, by the Global North. Fortunately, there are multiple initiatives and proposals to counteract exclusivities, commercial prerogatives, and rich countries’ preferential access to existing and novel COVID-19 health technologies. These initiatives include more radical proposals to waive recognition and enforcement of COVID-19-related intellectual property rights (IPRs) at the global and national level during the pandemic and to extend the general least developed country transition period for enforcement of IPRs. Other proposals focus on both voluntary and compulsory mechanisms to override IPRs, openly license and facilitate technology transfer of coronavirus vaccines, medicines, and diagnostics. Several global partners have established an accelerator to speed the development and marketing of new COVID-19 tools and secure at least some supplies for low- and middle-income countries. Finally, regional cooperation initiatives have been established. Although there have been multiple initiatives and proposals to overcome industry’s exclusive rights and commercial prerogatives, these efforts have not resulted in the needed paradigm shift in global health such that life-saving and enhancing health products are viewed as global public goods rather than as ordinary consumer products. Similarly, rich countries’ hegemonic hoarding of COVID-19 health products and inadequate global coordination mechanisms have left the imperative of equitable distribution of COVID-19 health products disarrayed, with the risk that twice as many people will die from COVID-19 than if vaccines were to be shared globally. We can hope that this dystopian stasis will be overcome, but it will take far more activism from governments, institutions, and civil society to dislodge the current lethargic response and intellectual property and market fundamentalisms that leave our world fractured in responding to this modern-day plague. This global pandemic needs a global response now and as a proving ground for future threats.

Balasubramanian, Sai Smrithi et al, ‘Covid-19 Vaccine vis-à-vis Application of Patent Law During Pandemic’ (2021) 10(2) International Journal of Modern Agriculture 388-394
Abstract: This article aims to study the possibility of a vaccine juxtaposed with the law of patents, to see how best the rights of the creator of the treatment kit may be protected while also not jeopardizing public health and safety. The author seeks to discuss the cost benefit analysis between the drug development process and patent protection of the developed drug, the concept of compulsory licensing which acts as a safety valve to block the creation of monopolies in the market during times of emergencies, and also bring to light the relatively modern idea of patent pooling to achieve equitable results across the globe.

Basheer, SK, ‘Ensuring Innovation and Access in Covid 19 Treatment: Challenges under Saudi Arabian Patent Law’ (2021) 27(2) Journal of Law and Political Sciences 72–100
Abstract: The COVID 19 pandemic has resulted in devastating social and economic impact. Hundreds of thousands of lives have lost and lives of billions more have been spilled. Apart from developing a successful Co-vaccine, the vital challenge is to ensure equitable access by accountability and transparency in vaccine allocation. ‘Nobody wins the race until everyone wins’ because this global infectious threat knows no boundaries. While 90% successful vaccines are set for the pandemic, patent regimes have to be ready with a well balanced mechanism promoting innovation and ensuring access to COVID 19 treatment. Call for ‘patent waver’ on COVID 19 was also a miserable failure. Equally alarming is pandemic profiteering by institutions like Vanderbilt University and AstraZeneca. Challenge before the international community is not simply the vaccine development;real threat is vaccine nationalization and patent monopolization. In this context the patent law of the kingdom has a critical role in spurring innovation on COVID 19 treatments and also it in ensuring equitable access of the vaccine to the developing countries.

de Beer, Jeremy and E Richard Gold, ‘International Trade, Intellectual Property, and Innovation Policy: Lessons from a Pandemic’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 579
Abstract: This chapter addresses intersections among international trade law, intellectual property rights, and domestic innovation policies to prevent, detect, and treat pandemics. Structural issues with Canada’s innovation system affected preparedness for this pandemic and, unless remedied, will impede responses to future crises. In this chapter, we suggest aligning domestic and international policy measures to nuance Canada’s approach to intellectual property and accelerate Canada’s global contributions through open science.

Bhardwaj, Chintan and Sanat Prem, ‘COVID-19 Vaccine: A Case of Compulsory Licensing for Social Utility!’ (SSRN Scholarly Paper ID 3853761, 26 May 2021)
Abstract: After a long and tough battle with COVID-19, people were given a ray of hope with the emergence of vaccines across the globe. However, it is safe to say that things have not quite gone according to plan. Vaccine shortages, debates over patents, hoarding, re-infections despite vaccines etc. have taken over the discourse. In this paper, the authors seek to examine one of these aspects: the need to treat vaccines as a ‘social utility’ tool essential for saving lives worldwide. We will delve into the compulsory licensing prospects in India, the debate around the recent patent-waiver calls on vaccines, and the dilemma between IP rights and social utility for COVID-19 vaccines. India and South Africa have led the calls for this waiver based on concerns of supply and price affordability. In this backdrop, we shed light on the process and need for compulsory licensing for the vaccine in India and how, in a sense, India is contradicting its call on the international front and its efforts back home, domestically. ‘Necessity is the mother of innovation’ – but what happens when that innovation does not reach those for whom it is a necessity? The legal dilemma arises when the jurisprudence of public welfare entangles with the jurisprudence of patent law under the principles of Intellectual Property Rights.The epidemic of COVID-19 has led to the development of the COVID-19 vaccine. The pharmaceutical sector has been upfront to develop a cure to bring normalcy back into the world. There have been billions of dollars invested to develop the vaccine and the institutions have secured a patent on the technology and the formula. The conclusive standing shall be observed by understanding the legislative intent under the Indian Patents Act 1970 (hereinafter referred to as ‘the Act’).

Birnhack, Michael, ‘Who Controls COVID-Related Medical Data? Copyright and Personal Data’ (2021) International Review of Intellectual Property and Competition Law (forthcoming)
Abstract: Who controls big medical data of relating to COVID-19 vaccines? The January 2021 Real-World Epidemiological Evidence Collaboration Agreement between Pfizer and the Israeli Ministry of Health highlights the interrelationship between two modes of protecting data: data protection law and copyright law. The former provides legal protection to data subjects and limits the data controller, but generally speaking, allows the data to be processed for the benefit of public health; the latter awards the databases’ controller with rights regarding the dataset, a control which may hinder others’ access to highly important data. This editorial unpacks this relationship. Under the Agreement, the Ministry shares ‘aggregate project data’ with Pfizer, meaning ‘any de-identified data.’ ‘Project data’ are owned by the MoH or Israeli Health Maintenance Organizations. The data are about millions of people from a variety of sources and are used as they are collected. Combining copyright law and the obligations imposed by data protection law, pushes the parties to protect data under both copyright law and additional layers of protection, such as trade secret law. This result means that other parties may have access to outcomes but not to raw data. To facilitate broad access to crucial data during a global health crisis, we need to address both bodies of law in an integrated manner.

Bois, Mikhalien Du, ‘State Use Provisions for Patent Law, and Expropriations: Some Comparative Law Guidelines for South Africa during the Covid-19 Crisis and Beyond’ (2020) 23 Potchefstroom Electronic Law Journal 1–35
Abstract: This article views section 4 of the Patents Act 57 of 1978 against section 25 of the Constitution of the Republic of South Africa, 1996 and Article 31 of the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994 (hereafter TRIPS). The purpose is to find a suitable framework for the state/government use/utilisation of patented products or processes for public purposes. A comparison is done with the Crown use provisions in United Kingdom, Australian and Canadian law to find a suitable approach to questions relating to remuneration for state use, the prior negotiations requirement set by Article 31 of TRIPS, and the public purposes and exclusive patent rights that would be included under state use. The COVID-19 international pandemic has caused a state of national disaster in South Africa, which is exactly the kind of situation of extreme urgency envisioned by the exception in Article 31 of TRIPS, which permits the state use of patents without requiring prior negotiations with the patent owner. In the battle against COVID-19 and its concomitant fallout, the South African government (and authorised private parties) would be permitted to utilise patent rights without explicit authorisation from the patent owner and without prior negotiations, but subject to the payment of reasonable remuneration by the government and other terms and conditions as agreed upon or as determined by a court. This may include making (manufacturing), using, exercising, and importing patented products (for example, personal protective equipment, pharmaceuticals, ventilators and diagnostic tests) deemed necessary in the fight against COVID-19. Foreign jurisdictions considered in this article indicate that section 4 of the Patents Act 57 of 1978 may certainly benefit from an update to provide detailed guidance on the state use of patented products or processes for public purposes. In the interest of a timeous offensive against the COVID-19 virus, the patent provisions need a speedy update to allow state use compliant with TRIPS and the Constitution of the Republic of South Africa, 1996.

Bonadio, Enrico and Andrea Baldini, ‘COVID-19, Patents and the Never-Ending Tension between Proprietary Rights and the Protection of Public Health’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 390-395
Introduction: In January 2020, Chinese researchers at the Wuhan Institute of Virology filed for a patent covering the use of remdesivir, an experimental antiviral drug, to treat COVID-19. Normally, this might be cause for celebration: COVID-19, a deadly pneumonia-like disease caused by the novel coronavirus, has so far killed thousands of people worldwide and sickened many more, sending researchers scrambling to develop an effective treatment.1 Only, the Wuhan Institute of Virology did not develop remdesivir. The drug was researched and produced by Gilead Sciences, a California-based pharmaceutical company, which had filed patent applications at several patent offices, including in China, covering a “method for treating Arenaviridae and coronaviridae virus infection”.

Calboli, Irene, ‘Trade Mark Licensing and Covid-19: Why Fashion Companies Have a Duty to Comply with Their Legal Obligations’ (2020) 15(7) Journal of Intellectual Property Law & Practice 489–490
Abstract: For the past several months, Covid-19 has dominated the intellectual property (IP) debate. Most discussions have focused on the implications of patent protection on access to treatments against the virus and a hopefully soon to be found vaccine. In these remarks, I would like to focus on another Covid-19 crisis making headlines across the world and partially related to IP: millions of workers in the garment industry in developing countries have been fired or furloughed as fashion companies have cancelled orders due to plunging sales since the pandemic’s beginning. Famous Western groups such as Inditex (Zara), C&A, Target, and Marks & Spencer are among the companies involved in this humanitarian crisis.

Calboli, Irene, ‘Trade Marking “COVID” and “Coronavirus” in the USA: An Empirical Review’ (2021) 16(6) Journal of Intellectual Property Law & Practice 473–483
Abstract: Famous and sensational events often lead to several entities filing trade mark applications that include terms related to these events. The most recent example of this phenomenon is the COVID-19 pandemic, which has led to large numbers of (largely controversial) filings worldwide. In this article, I review the applications including the terms ‘COVID’ and ‘Coronavirus’ filed with the United States Patent and Trademark Office (USPTO) in 2020 based on the data available and recorded by the end of January 2021. These data offer significant information related to the type of products for which the applications were filed, the type of filing entities, the legal basis for filings and the timing of these filings throughout the months of 2020.In particular, the COVID-19 pandemic led not only to a large number of filings for medical and pandemic related products, but also, and even more, for unrelated and promotional products. Individuals and small businesses were the largest groups of filing entities. Moreover, over two-thirds of the filings were submitted based on intent-to-use rather than use in commerce. Not surprisingly, the number of filings closely mirrored the development of the pandemic during the various months of 2020. Perhaps, one of the lessons that could be derived from the COVID-19 pandemic, and this unprecedented number of applications, is the need to further study the phenomenon of ‘sensation-drive’ trade mark filings and the problems that these filings can represent for the trade mark system.

Carney, Todd, ‘Does IP Law Allow for Exploitation during a Pandemic?’ (2021) 4 Wayne State University Journal of Business Law 101

Chaudhuri, Sudip, ‘Patent Protection and Access to COVID-19 Medical Products in Developing Countries’ (SSRN Scholarly Paper ID 3902314, 30 June 2021)
Abstract: Several new vaccines that have been developed for COVID-19 are patent protected. The patentees control the production, supply and pricing of these vaccines. Most people in low-income countries have been unable to access the vaccines. India and South Africa supported by a large number of developing countries have submitted a proposal to the TRIPS Council of the WTO requesting a temporary waiver to eliminate patent and other intellectual property barriers for the development, production and supply of all COVID-19 medical products. Nine months have passed since the proposal was first made in October 2020 but still no decision could be taken because of the opposition from developed countries. The disagreements essentially revolve around four issues: whether suspension of patent rights will act as a disincentive for the development of new medical products; whether patented products can be manufactured in the absence of manufacturing capacities; whether voluntary initiatives are better than a patent waiver; and whether a waiver is necessary in view of compulsory licensing and other measures which TRIPS permits. The paper briefly reviews these issues and also provides some suggestions about what developing countries can do to make COVID-19 medical products affordable and accessible.

Choudhary, Yatindra, ‘Intellectual Property Rights and Competition Law: A Hidden Chemistry Amidst Covid-19 Pandemic’ (2021) 25 Supremo Amicus Journal (unpaginated)
Abstract: During the COVID19 pandemic a word ‘Duopoly’ came across us frequently. A duopoly is a market situation that entails two competing companies that share the market. In this market, two brands can collude to set prices or quantity and make customers pay more money. In this context we are talking about Serum Institute of India and Bharat Biotech the manufacturers of covid vaccines Covishield and Covaxin respectively. Also, during this crisis enterprises felt compelled to take aggressive pricing measures to improve revenue collection while government was concerned about determining fair prices for essential commodities. Amid all this, ‘Competition Act, 2002’ came in light, significance of which was not put into much consideration by the government. Along with this the issue of Covid vaccines patent and compulsory licensing also caught the worldwide attention, which failed to reach the finish line. Abandoning the idea of compulsory licensing or patents and maintaining the pharmaceutical duopoly, resulting in creation of market imbalance and price discrimination was all protected by sensitive arguments like public health and emergency vaccination drive. The interface between competition law and IPRs protection is complex and multifaceted. It needs to be handled very carefully. It can be said that the countries including India requires the regulated market as well as free market in such times since both have their advantages and disadvantages and going with the operation of Competition law and IP invention is crucial, price needs to be stable, so that the supplier along with the buyer is able to fulfill their needs. A market without any regulating bodies will cause an unbalanced situation and once it goes out of control it is difficult to restore.

Contreras, Jorge L, ‘Expanding Access to Patents for COVID-19’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 158–162
Abstract: Two competing and linked sets of goals must be addressed when considering patent policy in response to a public health emergency. First is the allocation of existing resources among potential users (hospitals, patients, etc.); second is the creation of new technologies over time (innovation). Patents provide financial incentives to develop new technologies. Yet shortages of patented products often plague crisis response. In the case of COVID-19, allocative goals, particularly satisfying demand for patented medical products (e.g., vaccines, ventilators, PPE, and test kits), may be achieved through governmental interventions such as march-in and governmental use rights (compulsory licensing). But in cases involving the development of new technologies such as vaccines and therapies, incentive structures must be preserved to ensure that the private sector is appropriately motivated to act. In addition to patents, which reward inventors for financially successful innovations, a range of other incentives such as prizes, grants, and subsidies also exist to motivate technological innovation. Incentives like these, coupled with a requirement that resulting discoveries be made available on a broad and open basis, can achieve a balance between allocation and innovation goals. Governments can encourage such measures using both the incipient threat of compulsory licensing and the reward of procurement preferences and other up-front rewards.

Contreras, Jorge L, ‘The Open COVID Pledge: Design, Implementation and Preliminary Assessment of an Intellectual Property Commons’ [2021] Utah Law Review (forthcoming)
Abstract: Early during the COVID-19 pandemic, a number of widely-publicized incidents gave rise to concerns that holders of patents and other intellectual property (IP) rights could hinder the development, manufacture and distribution of essential medical devices, protective equipment and biomedical products. The global response to these concerns was swift and included the issuance of compulsory licensing orders by several national governments, as well as the proposal of a technology pool by the World Health Organization (WHO). Alongside these efforts, a group of scientific, engineering and legal experts created a lightweight, open framework under which IP holders could voluntarily pledge not to assert their rights against those responding to the COVID-19 pandemic. This effort – known as the Open COVID Pledge (OCP) – attracted significant participation from some of the world’s largest IP holders, with nearly 500,000 patents and patent applications, as well as significant copyrighted material, pledged to date. The OCP has also been adopted as part of the framework of the WHO’s COVID Technology Access Pool (C-TAP), a multinational initiative to make particular biomedical innovations more accessible around the world. This article describes the development of the OCP, including the design choices that shaped its legal structure and implementation. It also assesses the adoption of the OCP across market sectors including biopharmaceuticals, diagnostics, medical devices, protective equipment and digital innovations. It finds that while pledges in the biopharmaceutical sector have been infrequent, many other critical technologies in the fight against COVID-19 have been made broadly available to users through this and related pledging mechanisms, creating a favorable environment for open innovation, new market entry and equitable access to technology. As such, the OCP may both help to address the current pandemic and serve as a useful model for IP sharing platforms to address to future public health emergencies.

Contreras, Jorge L, ‘Research and Repair: Expanding Exceptions to Patent Infringement in Response to a Pandemic’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa014
Abstract: While public health emergencies such as the recent COVID-19 coronavirus pandemic strain resources, burden the economy and cause significant human suffering, they also provide opportunities to revisit established legal doctrines and consider them in a fresh light. This phenomenon is as true in patent law as it is in many other areas of law.1 Commentators have been quick to observe the many intersections between patent law and the coronavirus pandemic, often in connection with long-standing complaints and criticisms of the system.2 This essay does not attempt to address every patent law issue raised by the coronavirus pandemic, of which there are many. Rather, it focuses on two discrete areas of patent law through the lens of the current crisis and considers how we might adjust existing doctrine knowing what we know today.

Craig, Carys and Bob Tarantino, ‘“An Hundred Stories in Ten Days”: COVID-19 Lessons for Culture, Learning, and Copyright Law’ (2021) 57(3) Osgoode Hall Law Journal 567–604
Abstract: In the face of a pandemic, copyright law may seem a frivolous concern; but its importance lies in the ever-expanding role that it plays in either enabling or constraining the kinds of communicative activities that are critical to a flourishing life. In this article, we reflect on how the cultural and educative practices that have burgeoned under quarantine conditions shed new light on a longstanding problem: The need to recalibrate the copyright system to better serve its purposes in the face of changing social and technological circumstances. We begin by discussing how copyright restrictions have manifested in a variety of contexts driven by the coronavirus lockdown, focusing first on creative engagement and then on learning, foregrounding the damage done by encoding a permission-first approach into governance structures and digital platforms. These stories unsettle the common copyright narrative— the one that tells us that copyright encourages learning and the creation and dissemination of works—laying bare its disconnect from the current realities of our digital dependency. Turning to consider the justifications for copyright control, we underscore the critical role of user rights and substantive technological neutrality in crafting a flexible and fair copyright system for the future. The article concludes with some lessons that might be drawn from these tales of copyright in the time of COVID19 to inform the development of new digital copyright norms for whatever ‘new normal’ emerges.

Cruz, David Enrique Betancourt, ‘An Exceptional International Intellectual Property Law Solution for COVID-19: Spurring Innovation to Facilitate Access to Affordable Medicines’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture)
Introduction: There is no doubt about the role international law can play in order to face the current COVID-19 pandemic. The answer is crystal clear: reform the current International Intellectual Property Law regime in order to accelerate innovation and facilitate access to affordable medicines worldwide. This could include examining how to better use the current flexibilities of the patent system so as to allow for more innovation, and effective co-operation/coordination in the scientific world. This unprecedented crisis of international scope offers us a rare opportunity to galvanize support for stronger international co-operation among the World Health Organization (WHO), World Intellectual Property Organization (WIPO), World Trade Organization (WTO), United Nations (UN), G20, and the European Union (EU) – as the top net exporter of pharmaceuticals. Reforming the international patent system and the Trade- Related Aspects of Intellectual Property Rights Agreement (TRIPS) is the type of real and pragmatic solidarity that we need to protect the most vulnerable individuals around the world.

Deb, Chaarushena, Osman Moneer and W Nicholson Price II, ‘Covid-19, Single-Sourced Diagnostic Tests, and Innovation Policy’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa053
Abstract: The United States’ disastrous response to the onset of the Covid-19 pandemic has arisen in large part by an utter failure to provide adequate diagnostic tests for the presence of SARS-CoV-2. The Centers for Disease Control were the sole testing source authorized by the Food and Drug Administration, and when the CDC failed to provide reliable tests in sufficient volume, it took weeks for other providers to be approved and to ramp up testing. Revised policies should decrease the likelihood of sole-sourcing tests in pandemic contexts, which results in a fragile system. The pandemic sole-sourcing failure, however, not only accelerated the pandemic, but also provides lessons for innovation policy about diagnostic testing more generally. Sole-sourcing hurts clinical practice by limiting confirmatory testing and systemic robustness, whether in a pandemic or in regular practice. We thus argue against relying too heavily on exclusivity-creating patents as innovation incentive for diagnostic tests—including the proposed Coons-Tillis patent reform bill which would increase patentability for many such tests. Instead, we propose the use of reformed reimbursement to create better incentives for diagnostic test innovation. In both pandemics and elsewhere, single-sourcing creates too great a point of failure, but targeted innovation policy can help.

Dhenne, Matthieu, ‘COVID-19, Patents and Access to Healthcare: A French Perspective’ (SSRN Scholarly Paper No ID 3614409, 1 May 2020)
Abstract: While the coronavirus 19 (COVID-19) pandemic forced a large part of the world’s population into quarantine, research into treatment and testing intensified. At the same time, patents have rarely been so much in the forefront: how can we ensure that access to care will not be hindered by patents? Should we opt for an ex-officio license, relax the conditions of this license, or even expropriate the patentees? A bill tabled on April 7, 2020 in the French ‘Assemblée Nationale’ launches discussion in France.

Fedorov, Valentyn et al, ‘Theoretical Problems of Legal Regulation of Innovations in the Medical Field: Experience in Counteracting Covid-19' (2020) 9(2) Ius Humani Law Journal 251–289
Abstract: The work is devoted to identifying the main problems of legal regulation of innovations in the medical field and developing the best options for solving them in the context of the Covid-19 pandemic. Thus, the research methodology is based on general and special scientific methods, in particular: formal legal, historical and legal, comparative analysis, and modeling. So, the procedure and issues to be considered are as follows. In the introduction, we will briefly highlight the origins of intellectual property rights issues in the medical field and the overall state of the pharmaceutical industry. In the first subsection of the third section, we will consider the positions of the main players in the pharmaceutical industry and the contradictions between them. In the second subsection, we will highlight the international obligations under TRIPS. In the third subsection, we will consider the consequences of their direct violation. In the fourth subsection, the impact of Covid-19 and the methods of legal regulation of medical innovations and patents under the TRIPS agreement will be discussed. In the fifth subsection, we will propose a way out and a compromise according to the Indian scenario. As a result of the study, contradictions were identified in the aspect of maintaining the balance of private and public interests between states and international pharmaceutical companies in the context of a pandemic and proposed ways to resolve them within the existing legal methods under the TRIPS agreement to achieve an acceptable compromise.

Fitzgerald, Patrick, ‘Why, in Light of COVID-19, Congress Should Legislate E-Book Solutions’ (SSRN Scholarly Paper ID 3850921, 10 January 2021)
Abstract: Five months into the 2019 novel coronavirus (COVID-19) pandemic, the American Library Association found forty-seven percent of the United States libraries were closed, and did not plan to reopen soon. COVID-19 has diminished or temporarily ended access to over 650 million physical books in communities across the United States. In response, libraries have offered electronic books (e-books) to the public through different models called pretend it is print (PIP), cost per circulation (CPC), and controlled digital lending (CDL). At the beginning of the pandemic, an organization called Internet Archive decided to offer 1.4 million free, unrestricted e-books to the public. As a result, four of the biggest publishers sued Internet Archive in the Southern District of New York. The publishers argue Internet Archive specifically engaged in copyright infringement, but have also launched an attack on the legality of the CDL model. This note argues that the publishers’ lawsuit against Internet Archive ought to make the CDL model illegal, but Congress also ought to intervene to make e-books more similar to physical books in the PIP and CRC model, by reducing publishers’ pricing and reforming e-books’ current restrictions to make them more similar to physical books. Part II provides a brief overview of United States copyright law, culminating in a discussion of topics that relate specifically to e-books: the first sale doctrine, a potential digital first sale doctrine, the rights and limitations copyright holders have today, and the fair use doctrine. While discussing these concepts, Part II will examine how copyright law applies differently to physical books than e-books. Also included in this section will be important case law like Capitol Records, Ltd. Liab. Co. v. ReDigi Inc., since it has implications on the Hachette Book Group, Inc. v. Internet Archive case. Part III will discuss the ongoing battle between libraries and publishers and how the e-book system is currently constructed. This section will discuss the different types of e-book lending models that libraries and publishers engage in, including the costs and restrictions associated with each model, and why publishers believe e-book lending by libraries unfairly takes away some of publishers’ profits. This section will also address how COVID-19 has impacted libraries and publishers. Part III ends by inspecting the facts around the Internet Archive case, including the controversial model Internet Archive operates in, known as CDL. Part IV will apply copyright law to the facts of Internet Archive. Part IV will conclude Internet Archive engaged in copyright infringement, and its use is not protected by the fair use doctrine. After discussing Internet Archive specifically, Part IV will turn its focus to the model Internet Archive operates in, known as CDL. This part will conclude the model as a whole constitutes copyright infringement, and its use is also not protected by the fair use doctrine. Thus, I will argue the publishers should, and will, prevail on their copyright infringement claim. After predicting the publishers will prevail in their lawsuit against Internet Archive, Part V will discuss solutions to make the remaining models, PIP and CPC, better. I will argue Congress should intervene to regulate the structure of e-book licenses to imitate physical books. However, these solutions are not meant to supplant the technology restrictions already in place by publishers and libraries to prevent piracy, in particular digital rights management (DRM) technology, and the one book, one user limitation. Congress should set e-book licenses to expire based on what type of book the physical version is, mandate the use of advanced technology to limit e-books’ accessibility, and provide that the first sale doctrine does not to apply to digital copyrighted works. By having Congress intervene to make e-books more like physical books, the hope is that publishers will recognize how e-books are similar to physical books, and lower the prices publishers charge libraries for e-books. This would create a more equitable e-book lending market where libraries are able to circulate more e-books through a lower cost, and publishers can to continue to profit off of their works.

Flynn, Sean et al, ‘Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for International Action’ (Joint PIJIP/TLS Research Paper Series No 48, 2020)
Abstract: Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, including by providing guidance on the diverse mechanisms that countries may use to authorize TDM research and serving as a forum for the adoption of rules permitting cross-border TDM projects.

Frye, Brian L, ‘Literary Landlords in Plaguetime’ (SSRN Scholarly Paper No ID 3701236, 28 September 2020)
Abstract: Copyright scholars disagree about whether we should conceptualize copyright as a form of property. This essay accepts the property metaphor and asks what it entails. It observes that if copyright is property, then copyright owners are landlords. It reflects on why copyright owners love the property metaphor, but hate the landlord metaphor. And it asks how conceptualizing copyright owners as landlords might affect our assessment of their moral claims.

Gurgula, Olga, ‘Drug Prices, Patents and Access to Life-Saving Medicines: Changes Are Urgently Needed in the COVID-19 Era’ (2021) European Intellectual Property Review (forthcoming)
Abstract: When patented life-saving drugs are inaccessible to patients due to high prices it is evident that the system does not perform its intended function and urgently requires reforming. The paper discusses the evidence recently revealed by the US House Committee on Oversight and Reform that directly contradicts pharmaceutical companies’ traditional argument justifying strong patent protection as a vehicle for recouping their R&D investments. It further suggests that structural and comprehensive changes are necessary, including a rigorous investigation into pharmaceutical pricing and patenting practices, ensuring adequate access to the drugs developed with public funds, and assuming the responsibility for public health by governments.

Gurgula, Olga and John Hull, ‘Compulsory Licensing of Trade Secrets: Ensuring Access to COVID-19 Vaccines via Involuntary Technology Transfer’ (Queen Mary Law Research Paper No 363/2021, 23 June 2021)
Abstract: This paper considers how vaccine technology to meet the challenges of the COVID-19 pandemic can be made available to increase the production of vaccines. Its primary focus is on trade secrets, which are one of the main intellectual property rights protecting the complex manufacturing processes of vaccine production. The compulsory licensing of trade secrets presents some unique obstacles and consideration is given to some practical solutions that might balance the interests of technology owners and the public interest in increased access to vaccines. In particular, this paper suggests that to make the currently discussed proposals on accelerating the production of COVID-19 vaccines, including compulsory licensing of patents and the IP waiver, work, an additional mechanism of compulsory licensing of trade secrets is required. It is believed that a proposal for a new mechanism of compulsory licensing of trade secrets coupled with a discussion on the content of such licences, challenges that would need to be addressed and the potential wording of such a licence, would provide useful guidance to governments on how to make their compulsory technology transfer mechanisms more effective.

Heled, Yaniv, Ana Santos Rutschman and Liza Vertinsky, ‘The Need for the Tort Law Privileges of Self-Defense and Necessity in Intellectual Property Law’ (SSRN Scholarly Paper ID 3642833, 3 July 2020)
Abstract: The COVID-19 pandemic has laid bare inherent tensions between the protection of intellectual property (IP) and the health of individuals touched by life-threatening medical conditions. Examples from around the world have made front page news: hospitals desperate for ventilator parts while 3D-printing instructions for such parts remain unshared for fear of liability; potentially lifesaving medicines whose manufacture and distribution on sufficient scale is limited by the threat of patent infringement; proprietary clinical data essential for making life-or-death decisions withheld from doctors and patients; the list continues. The threat of liability for IP infringement also dampens the ability to innovate under conditions of emergency, further contrasting the protection of IP with the protection of human lives. A number of policy responses for the current pandemic have been advanced, including the application of government rights under the Defense Production Act to IP contexts, compulsory licensing, legislation that would allow for emergency overrides to IP protections, and efforts to encourage companies to make their IP freely available voluntarily through the Open COVID Pledge. But fears of disrupting IP protections have curtailed the use of these measures, leaving the tensions between protection and life-saving access largely unaddressed. In this Article we argue that the time is ripe for doctors, hospitals, independent compounders, medical products manufacturers, engineers and, ultimately, litigants and the courts to consider self-defense and necessity as an old-new tool for resolving IP disputes. Doing so would not only be ethically sound but would also help to resolve many of the public health critiques that have been plaguing IP law by attenuating ingrained misalignments between IP frameworks and the furtherance of public health goals. The Article demonstrates the need for the self-defense and necessity doctrines in IP law; explains how such claims may allow defendants to avoid liability in circumstances in which infringement is necessary to prevent adverse public health outcomes; and shows why the adoption of these doctrines is needed to increase preparedness ahead of future—indeed expected—outbreaks of infectious diseases.

Hilty, Reto et al, ‘Covid-19 and the Role of Intellectual Property: Position Statement of the Max Planck Institute for Innovation and Competition of 7 May 2021’ (Max Planck Institute for Innovation & Competition Research Paper No 21–13, 7 May 2021)
Abstract: In this Statement, the authors take a position on the waiver of intellectual property (IP) protection currently being considered by the members of the World Trade Organisation. The waiver was initiated by India and South Africa as a measure to enable rapid access to affordable medical products that are necessary to combat Covid-19. The initiative gained momentum after the US decided to support it. The authors do not consider this path to be expedient. The Statement presents factual and legal arguments why a comprehensive waiver of IP protection is unlikely to be a necessary and suitable measure towards the pursued objective. Overall, it argues that IP rights may so far have played an enabling and facilitating rather than hindering role in overcoming Covid-19. The global community might not be better off if IP rights are waived, neither during nor after the pandemic. There are more efficient and direct ways to supply developing countries with vaccines quickly – if the industrialised countries are willing to do their share.

Haugen, Hans Morten, ‘Does TRIPS (Agreement on Trade‐Related Aspects of Intellectual Property Rights) Prevent COVID‐19 Vaccines as a Global Public Good?’ (2021) 24(3/4) Journal of World Intellectual Property 195–220
Abstract: The article analyses the global public goods approach to COVID‐19 technologies, embedded in 2020 affirmations by the World Health Assembly (WHA), the UN Human Rights Council and G20 on broad immunization against COVID‐19. After identifying the access to COVID‐19 tools (ACT) Accelerator members, the UN efforts are identified, focusing primarily on the UN human rights bodies, acknowledging how these and the WHA have mutually reinforced each others’ efforts. The article finds that the global public goods terminology appeared in UN resolutions in 2020, while wording that included vaccines—on an equal footing as medicines—appeared in 2016, and recognition of generic medicines appeared in 2019. The so‐called Trilateral Cooperation on IP and public health between two UN specialized agencies and the World Trade Organization (WTO) has increased awareness of the flexibilities within WTO’s TRIPS Agreement. These flexibilities are explained. With notable exceptions, like India, these flexibilities are not widely applied in domestic legislation. A different emphasis characterizes the millennium development goals era as compared to the sustainable development goals era, and this shift is explained by applying relevant theories. Among pro‐TRIPS developed countries there is an acknowledgment of obstacles created by the IP system, but their overall position has not changed.

Ho, Cynthia M, ‘IP Nationalism: Addressing the COVID Crisis and Beyond’ (SSRN Scholarly Paper ID 3910806, 23 August 2021)
Abstract: This Article coins and explains the phenomena of IP nationalism. Just as some nations engage in vaccine nationalism by hoarding limited COVID vaccines, so, too, some nations are hoarding critical knowledge and technology by resisting modification of usual IP rules during the pandemic, such as a proposed waiver of international IP obligations. Countries that are home to IP-owning pharmaceutical companies often benefit from strong global IP rights, since that usually improves domestic GDP for IP-intensive products such as drugs. Even nations without strong IP exports may embrace IP nationalism because current international laws provide economic benefits to these countries in terms of increased trade for non-IP goods. As this Article explains, countries that embrace IP nationalism raise incomplete, or affirmatively false arguments asserting that barriers to accessing medicines are primarily caused by non-IP issues, which hides how IP and IP nationalism are nonetheless creating barriers to access.IP nationalism is harmful. Failure to modify traditional IP rights has contributed to inadequate supply of COVID vaccines, which will likely result in more variants that threaten global health and suppress global economic recovery due to disruption of global supply chains. Even outside a pandemic, where IP nationalism could economically benefit countries with IP-intensive exports, it still creates other harms. For example, IP nationalism results in strong global IP rights that often make necessary goods, such as life-saving medicines, unaffordable to many people worldwide. Furthermore, these rights primarily promote innovation that is most profitable, rather than what is most socially desirable. For example, companies are incentivized to pursue and market treatments of questionable utility, such as the newly approved Alzheimer’s drug that may not even be effective, simply because they generate substantial profits. In contrast, vaccines beyond COVID and antibiotics, though desperately needed by all, are generally not pursued due to low profitability.This Article argues that IP for essential treatments such as COVID vaccines should be considered ‘global public goods’ available to all, contrary to beliefs held by supporters of IP nationalism. This would be an admittedly radical, yet necessary change from current norms. First, this could encourage countries to embrace the proposed waiver of international IP rules for COVID treatments. Although waiving traditional IP rights will not immediately increase vaccine supply, it would permit available and interested companies to expand vaccine capacity and create competition that would likely increase supply and lower costs, allowing poorer countries greater access to the vaccine. In addition, recognition of IP covering pandemic treatments as global public goods would help avoid replicating the current vaccine apartheid in subsequent pandemics and begin to counteract well-documented racial and ethnic disparities regarding access to medicines.

Huang, Vicki T, ‘COVID-19 as a Trade Mark in Australia: Issues and Implications’ [2020] European Intellectual Property Review (forthcoming)
Abstract: In the past, well-publicized adverse events have triggered surges in ‘tragedy’ trade mark applications for signs such as ‘9/11’ or ‘MH370’. Unsurprisingly (as at 31 March 2020) there were 57 trade mark applications for the word ‘COVID-19’ across trade mark registers across the globe. In Australia, these types of marks face a variety of legal hurdles that may prevent registration. These include the question of whether the mark is ‘distinctive’ and the bar against ‘scandalous’ marks. This article discusses how ‘COVID-19’ (and other tragedy related trade marks) challenges the boundaries of these rules; the likelihood of COVID-19 being registered; and whether Australian law should change to expressly proscribe against ‘tragedy’ trade marking.

Hudson, Emily, ‘Copyright Guidance for Using Films in Online Teaching During the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3667025, 4 August 2020)
Abstract: This Guidance discusses copyright options for using feature films and other audiovisual content in online teaching. It responds to concerns amongst UK higher education institutions (HEIs) that moving education online as a result of the COVID-19 pandemic raises new copyright risks. At many HEIs, in-person lectures may not be possible in the coming academic year due to COVID-related social distancing requirements. Even if some face-to-face teaching is possible, many students will undertake some or all of their studies remotely. One particular concern has been ensuring that Film Studies departments can screen feature films to students online, this being an essential part of those programmes. But lecturers in other disciplines also use a variety of films in their teaching, making these copyright questions of broader relevance. HEIs are keen to know whether they may use audiovisual content in online teaching without a licence. The key take-home message from this Guidance is that there are a number of exceptions in the Copyright, Designs and Patents Act 1988 (CDPA) on which HEIs may be able to rely. It focuses in particular on the fair dealing exception for illustration for instruction in s. 32 of the CDPA, and quotation in s. 30(1ZA).

Hudson, Emily and Paul Wragg, ‘Proposals for Copyright Law and Education During the COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3617720, 3 June 2020)
Abstract: This article asks whether the catastrophic impact of the COVID-19 pandemic justifies new limitations or interventions in copyright law so that UK educational institutions can continue to serve the needs of their students. It describes the existing copyright landscape and suggests ways in which institutions can rely on exceptions in the CDPA, including fair dealing and the exemption for lending by educational establishments. It then considers the viability of other solutions. It argues that issues caused by the pandemic would not enliven a public interest defence to copyright infringement (to the extent this still exists in UK law) but may be relevant to remedies. It also argues that compulsory licensing, while permissible under international copyright law, would not be a desirable intervention, but that legislative expansion to the existing exceptions, in order to encourage voluntary collective licensing, has a number of attractions. It concludes by observing that the pandemic highlights issues with the prevailing model for academic publishing, and asks whether COVID may encourage universities to embrace in-house and open access publishing more swiftly and for an even greater body of material.

Jepson, Daniel, ‘In Case of Emergency Exploit Rights?: A Summary of the Crown’s Power to Exercise Intellectual Property Rights in an Emergency’ (2020) 33(2) Australian Intellectual Property Law Bulletin 22–24
Abstract: Recent events, including the COVID-19 pandemic, have led to calls for governments to use privately owned intellectual property for the public interest. Contact tracing technology, testing kits, potential treatments and research analysis are just a few examples of privately generated inventions and works that may be of incredible public benefit in a pandemic. This article considers how and when governments (and others authorised by them) may obtain rights in an emergency, particularly those connected with patents, designs and copyright.

Kameel, Tariq, Ramzi Madi and Kawthar Kayed, ‘The Compulsory Licensing for Exploiting Patented COVID-19 Pharmaceutical Treatment: Legal Approaches of Some Arab Countries’ (2021) 40(2) Biotechnology Law Report (advance article, published 10 March 2020)
Abstract: This article deals with exploitation of a pharmaceutical patent to treat the novel coronavirus. The laws of several Arab nations, which regulate industrial property rights in regard to the use of compulsory licensing for exploiting patented COVID-19 pharmaceutical treatments, are examined, compared, and contrasted. The cases in which such laws permit use of compulsory licensing are clarified, such as in the interest of national security and in emergencies. This article concludes that the COVID-19 pandemic has posed a serious threat to the public health of various countries which has justified the use of compulsory licensing to exploit new patents. A patent owner has the right to be granted appropriate compensation during exploitation, and the new compulsory license terminates once the purpose for which it has been given terminates.

Kovac, Mitja and Lana Rakovec, ‘COVID-19 Pandemic, Long-Term Incentives for Developing Vaccines and Infectious Disease Market: IP Law under Stress’ (SSRN Scholarly Paper ID 3710888, 13 October 2020)
Abstract: Continents are facing an apocalyptic pandemic that pose a mortal danger to millions of its citizens. This paper seeks to address the role of intellectual property law in addressing the problem of COVID-19 pandemic. We suggest that current international IP law regime and TRIPS Agreement do not pose an insurmountable impediment to access to the successful COVID-19 vaccine. Publicly advocated fundamental reform or even the abolishment of the current IP law regime under severe information asymmetries might be counterproductive and distortive. Governments can via existing compulsory licensing, advance purchase agreements and employment of patent-pools, research subsidies, reward mechanisms and reputational sanctions take necessary steps to effectively overcome any IP barriers in ensuring access to crucial medicines/vaccines especially during a COVID-19 pandemic. Moreover, the current rate of medical research on COVID-19 suggests that previous vaccine R&D ‘failures’ were driven by rather limited demand for such vaccines and where not the problem of inadequate IP-incentive stream. Furthermore, paper suggest that the current EU competition law rules on the horizontal exchange of information might be perceived as an impediment to innovate and might be temporary suspended. In addition, paper offers several substantive insights on an improved IP related public policy respond in the war against COVID-19.

Kumar, Sapna, ‘Patents, Pharma, and the Pandemic’ (SSRN Scholarly Paper ID 3636456, 26 June 2020)
Abstract: Highly-developed countries have generally supported strong patent rights and opposed utilizing compulsory licensing to obtain patented products without patent holders’ permission. But the COVID-19 pandemic has caused governments to reassess their position. Aided with taxpayer money, pharmaceutical companies are developing new vaccines and treatments. Unfortunately, there is no guarantee that they will be able to produce a sufficient quantity of any newly developed drugs, and the cost may be prohibitively expensive to most. Several countries have consequently reconsidered their past opposition to compulsory licensing and have passed new legislation bolstering their ability to provide patented drugs to their citizens for the duration of the pandemic. The United States, however, remains staunchly opposed—driven by the belief that any crack in strong patent rights will harm innovation. This Article examines the growing compulsory licensing divide among highly-developed countries. It provides an overview of existing U.S. law and looks at how the U.S. government’s attitude towards the compulsory licensing of drugs has shifted over time. It then discusses how countries such as Germany and Canada have recently adapted their patent laws and taken a collaborative approach to safeguarding public health, while the Trump administration has pursued a path of ‘vaccine nationalism.’ Finally, the Article proposes federal and state solutions to ensure access to COVID-19-related pharmaceuticals.

Kumar, R Satish, ‘Compulsory License under the Patents Act’ (SSRN Scholarly Paper ID 3896012, 29 July 2021)
Jurisdiction: India
Abstract: During the present COVID-19 pandemic the protection of intellectual property rights would have to be balanced with the public welfare. One such mechanism for balancing the rights of the intellectual property holder and the general public is compulsory licensing. Compulsory licensing allows production of affordable drugs and increases availability and supply. The present research paper seeks to discuss the broad principles governing compulsory licensing, the judicial view that has been taken on the same, and whether the same can be resorted in the present pandemic situation where hundreds of lives are being lost every minute, critical expensive drugs like Remdesivir, Tocilizumab, Favipiravir etc., which are expensive and in short supply, can be licensed to increase production and improve affordability.

Lasting, Hannah M, ‘Big Pharma, Big Problems: COVID-19 Heightens Patent-Antitrust Tension Caused by Reverse Payments’ (2021) 44(2) Seattle University Law Review 601–631
Abstract: In the wake of COVID-19, pharmaceutical companies rushed to produce vaccinations and continue to work on developing treatments, while the tension caused by reverse payments intensifies between patent and antitrust law. Lawmakers must address this tension, and the current pandemic should serve as a catalyst to prompt reform at the legislative level. By amending the Hatch-Waxman Act, lawmakers can ease the increasing strain between patent and antitrust policy concerns. In 2013, the U.S. Supreme Court attempted to resolve this tension in its landmark decision, F.T.C. v. Actavis, but the tension remains as lower courts struggle to produce a uniform standard when applying Actavis to reverse payment settlements arising as a result of the current Hatch-Waxman Act provisions. Much scholarship exists explaining and addressing the lingering issues surrounding reverse payment settlements. However, no better time exists to address this heightened problem in the pharmaceutical context than now--amidst the COVID-19 pandemic devastating the United States. Lawmakers must act now to shield consumers from big pharma barring public access to affordable medications through reverse payment settlements.

Le, Thi Mai, ‘Potential Impact of Provisions of Intellectual Property Rights Related to the Pharmaceutical Sector in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership on Access to Medicines, in the Context of the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3903976, 16 September 2020)
Abstract: With the aim of strengthening the economic integration to liberalize trade and investment among members, 12 countries in the Pacific Rim including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam came together under a FTA called Trans-Pacific Partnership Agreement (TPP). After the withdrawal of the United States based on the consideration that the agreement would adversely affect the its economy and independence, the remaining 11 countries came up with a new FTA, now renamed as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). In terms of IPRs, among various provisions, CPTPP incorporated a few controversial articles intensively related to the pharmaceutical sector including patentability, patent term extension, test data exclusivity and patent linkage. These provisions promote a higher level of protection for IPRs compared to the TRIPs agreement; therefore, raise strong arguments regarding their potential consequences on public health. Although the first three provisions, namely patentability, patent term extension and test data exclusivity, were suspended in the transition from TPP to CPTPP, their possible impact on access to medicines has not withered yet based on the fact that the negotiation of these suspended articles can be reopened to welcome the United States back and attract new members to the game. The thesis will focus on analyzing the aforementioned IPRs introduced in CPTPP, both the suspended and remaining ones, in relation to access to medicines in member states, especially in developing countries. A comparison between these provisions and corresponding provisions under TRIPs, references to other TRIPs-Plus FTAs and arguments surrounding their justifications will be incorporated. The evaluation of potential impact of such IPRs on widespread access to affordable medicines will be elaborated through various examples and studies including those in countries which are not members of CPTPP but have already introduced such TRIPs-Plus provisions into their domestic laws. Especially, such provisions also raise strong concerns in the context of the COVID-19 pandemic when governments are putting their priorities on developing safe and effective vaccines and treatment medicines used against the disease. Therefore, the question of whether such provisions would create obstacles to member states in utilizing flexibilities set out under TRIPs such as compulsory licensing, and prevent them from timely and proper access to pharmaceutical products used for COVID-19 will also be discussed. At the end, this thesis comes up with several suggestions regarding possible actions for the countries to consider in order to minimize the potential impact of such provisions, while considering the scenario of a re-opening of negotiation and lift of the suspension of these provisions.

Levine, David S, ‘COVID-19 Trade Secrets and Information Access: An Overview’ (SSRN Scholarly Paper ID 3838892, 10 July 2020)
Abstract: The unprecedented COVID-19 (COVID) virus has brought to the forefront many challenges associated with exclusive rights, information sharing, and innovation. How do we get effective diagnostics, treatments and vaccines quickly and safely to the public? More specifically, how do we ensure that sufficient quantities are produced, that health products are affordable, and that they are equitably distributed globally? Among many challenges on the road to this outcome is the difficult question of how to handle trade secrets, namely, information that is valuable because others do not know it.The most famous trade secret is the Coca-Cola formula, but trade secrecy spans a shockingly broad range of critical and life-saving information. Indeed, trade secrets are everywhere in the battle to defeat COVID, from clinical data to pharmaceutical manufacturing processes. For the public at large, COVIDtrade secrets raise two primary issues: (a) When do you have a COVIDtrade secret, and (2) Should access to that trade secret extend to competitors, civil society groups, and/or the public? Both are challenging questions, and the below presents a general overview of the framework for addressing each question.

Lo Bianco, Federico, ‘Comparative Patent Compulsory Licensing Under COVID-19’ (SSRN Scholarly Paper No ID 3580407, 19 April 2020)
Abstract: It is fascinating to see how the law has always followed human needs and development. Historically, when a new issue came out the governments started legislating in order to ensure social stability and keep the trust of citizens on the politics, but sometimes the regulatory process may be undertaken in advance. Indeed, even if the compulsory licensing procedure has always been one of the flexibilities of the TRIPS agreement, ever since 1995, it has sporadically been used by some states while other nations have never applied this flexibility at all. Recently, due to the COVID-19 pandemic, the importance and the popularity of compulsory licenses have been growing all over the world.

Marcowitz-Bitton, Miriam and Yotam Kaplan, ‘Recalibrating Patent Protection for COVID-19 Vaccines: A Path to Affordable Access and Equitable Distribution’ (SSRN Scholarly Paper ID 3855033, 27 May 2021)
Abstract: A safe and effective COVID-19 vaccine is the holy grail of our generation, necessary to resurrect our societies, save millions of lives, and protect our economies from collapse. Patent protection is the primary legal mechanism for ensuring timely development of such a vaccine. The patent system is designed to create the necessary incentives for private parties to invest in developing the vaccine, knowing they will enjoy the fruits of their success. Indeed, patent protection is necessary to promote human knowledge generally as well as a quick, safe, and effective COVID-19 vaccine.Yet in reality, patent law may be obstructing the very goal it is intended to achieve. Patent law grants exclusive rights to inventors, enabling them to charge supracompetitive prices, delaying the distribution and dissemination of emerging technologies. In the context of the COVID-19 vaccine, patent protection means that vaccines will be financially out of reach for many. This produces a paradoxical result: rather than promote technological advancement for the public good, patent protection impedes it. Since universal immunity is necessary in the fight against the pandemic, delays in vaccine distribution can be catastrophic, costing millions of lives and carrying devastating economic consequences.This Article therefore proposes a novel, alternative patent regime, designed to overcome this paradox at the heart of patent law. We propose a mechanism that will eliminate the problem of over-protection of patent rights that exists under current patent law, while still providing sufficient incentive for inventors to invest in innovative efforts. Under our proposed regime, the developer of a new vaccine will be granted a patent protecting its invention, but this patent will expire once the patentee has recouped its investment, plus a handsome profit. This regime, which we term ‘recoupment patent,’ ensures that inventors are rewarded appropriately—but not excessively—for their innovative efforts. The result is a structure that encourages innovation while minimizing the time it takes for life-saving inventions to reach the public domain. We compare the proposed regime with other suggestions for reforming the patent system, including compulsory licensing, government incentives such as grants, subsidies, and prizes, and altruistic initiatives such as private-public partnerships, patent pools, and patent pledges, and we highlight the recoupment patent model’s advantages over these alternatives.

Masnun, Muh Ali, Eny Sulistyowati and Hananto Widodo, ‘Patent Vs Trade Secret: Considering the Legal Protection of Covid-19 Vaccine in Indonesia Related to the State Intervention’ (2020) 473 Advances in Social Science, Education and Humanities Research 352–356
Abstract: The purpose of this study is to analyze how the legal protection of Covid-19 vaccine through an intellectual property rights protection approach. The protection is to weigh between patents and trade secrets by linking state intervention with the basis that the Covid-19 pandemic has become a global problem so there must be state interference in this matter. Research used normative juridical supported by both primary and secondary legal materials. The results of the study that the legal protection of Covid-19 can use patents or trade secrets. Patents and trade secrets as an IPR regime the inherent exclusive rights granted by the state, however, are unlimited. One form of limitation of exclusive patent rights is the rules regarding compulsory licenses, while limiting exclusive rights to trade secrets by allowing the disclosure of trade secrets on the grounds of public health and safety. State intervention in protecting the public of patent or trade secret exclusivity is by applying compulsory licenses to patents or disclosing information on trade secrets.

Matheson AM, Sarah and Artemis Kirkinis, ‘Compulsory Licence and Crown Use Provisions in the Covid-19 Pandemic: The Australian Perspective’ (2021) 16(6) Journal of Intellectual Property Law & Practice 484–497
Abstract: In the global COVID-19 pandemic, there has been considerable speculation that global pressures facing governments, including the need to guarantee the supply of a vaccine or treatments (when available) and medical equipment, could lead to the compulsory licence or Crown use (otherwise known as government authorization) provisions being invoked. However, to date, collaborative approaches have prevailed; there have been some unconventional approaches to intellectual property rights, and considerable efforts to repurpose existing technology that shows any promise of application in the present context. Despite a pandemic being the very type of emergency that could trigger the use of these coercive powers, it may be that patented technology can be accessed without the need to invoke them. Instead, the mere fact of their existence may encourage an otherwise reluctant patentee to reach a timely arrangement for access to patented technology or products. In this way, compulsory licence and Crown use provisions serve an important role as safeguards to ensure the appropriate balance between a patentee’s reward for its investment, and the need for access to patented technology during a public health crisis.

Matthews, Duncan, ‘Reappraising the Relationship between Intellectual Property Rights and Human Rights: A COVID-19 Pandemic Response’ (Queen Mary Law Research Paper No 366/2021, 6 September 2021)
Abstract: The Covid-19 pandemic, the greatest global health crisis of our times, has highlighted profound inequities in the manufacture and supply of diagnostics, treatments, and vaccines to health care systems worldwide. Crucially, it has revealed structural fault lines in the international intellectual property (IP) architecture. This has strained relations between those who assert that the protection and enforcement of intellectual property rights (IPRs) are essential components for future investment and innovation, and those who argue that IPRs relevant to healthcare technologies necessary to save lives during the pandemic should be temporarily set aside, with IP-protected health care products available unhindered by the existence of associated IPRs. Against the backdrop of the Covid-19 pandemic response, this paper adopts a human rights approach to reappraise the relationship between IPRs and access to health care technologies. It argues that, while tensions between IPRs as property rights, on the one hand, and the right to health as a human right on the other are not new, a human rights approach to IPRs is an important and valuable conceptual tool as we re-evaluate the IP response to the Covid-19 pandemic. It argues that a human rights approach can enable a fundamental rethinking of the relationship between IP, innovation and access, for the Covid-19 pandemic response and inform debates about future pandemic preparedness.

Mayana, Ranti Fauza, ‘Needs for a Comprehensive Copyright Legislation on Over-The-Top Platform in Breaking Covid-19 Cycle’ 10(1) NTUT Journal of Intellectual Property Law and Management 67–79
Abstract: New advances in the era of digital disruption have brought changes from the conventional era to the digital era during the Covid-19 pandemic. The changes have impacted on the economic industry and government as well as the emergence of new businesses from innovators to make strategies through digital platforms. This study aims to evaluate the protection of Copyright Law through the Over-The-Top platform from the perspective of Indonesian positive law and how the regulations and practices of using copyright objects on the Over-The-Top digital platform in breaking the cycle of Covid-19 pandemic. This study applies a normative juridical method, by providing explanations based on the provisions of the applicable law. Additionally, this study also utilizes a comparative juridical method by comparing several regulations. The results of this study indicate that, firstly, in Indonesia until recently, there has been no adequate regulation on the Over-The-Top Digital Platforms as well as changes in Digital Transformation based on Cyber law in Indonesia. Secondly, during the Covid-19, there have been many benefits from the digital platforms since the Government implemented the Work From Home policy. These platforms can be used to continue carrying out activities from home. Further, these platforms are also useful in breaking the Covid-19 cycle in Indonesia.

McCarthy, Claudine, ‘Know How to Address Legal Issues Related to E-Learning during Pandemic’ (2021) 21(6) Campus Legal Advisor 1–5
Abstract: The shift from in-person to remote learning solutions has made it more important than ever to understand the role copyright laws play in online class presentations, Jeffrey D. Peterson, Esq., a Partner with the law firm of Michael Best & Friedrich LLP in Wisconsin, explained during a webinar hosted by the Employment Law Alliance.

Mohammed, Abdul Fasi, ‘An Overview on the Various Pricing Policies of Health-Related Products and Incentivizing the Innovation During the Health Emergency Situations’ (SSRN Scholarly Paper ID 3903246, 11 August 2021)
Abstract: Patents are often seen as legal monopolies that impose exorbitant pricing, particularly for innovations in the pharmaceutical and medical device sectors where the inventions are usually protected through the patents. Many have argued that patent protection should not be extended to sectors where the public interest in obtaining those products or services is important, such as health-related products, which also includes the medications. This paper provides an overview of different policy choices that national governments might employ to both promote innovation in health-related goods and ensure low consumer prices for the basic medicines. Special consideration is given to the current COVID-19 health emergency and highlights the solutions through the published reviews to make the basic medications freely accessible to all countries.

Morten, Christopher and Charles Duan, ‘Who’s Afraid of Section 1498? A Case for Government Patent Use in Pandemics and Other National Crises’ (2020) 23 (Fall)Yale Journal of Law and Technology 1-96
Abstract: COVID-19 has created pressing and widespread needs for technologies such as vaccines and medical treatments, needs that may conflict—indeed, have already begun to conflict—with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government-paid compensation under 28 U.S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point that it ought to be invoked sparingly or not at all, even in extraordinary circumstances such as a pandemic.Yet that conventional wisdom is a recent one, and it conflicts with both history and theory. This article considers the role of § 1498 specifically in the context of national crises and emergencies like COVID-19, a context so far not addressed substantially in the literature on the statute. We find that government patent use is not nearly as exceptional as it is commonly made out to be, and indeed has been not only used but expanded (through statutory amendment) over the last century. Review of the development and use of the statute during both world wars and the post–September 11 period reveals widespread acceptance of government patent use as a tool for addressing imminent national-scale problems, and it illuminates particular features of government patent use that become especially pertinent in times of crisis. In the United States, government patent use and national emergencies have a close and special relationship; each has shaped the other.Drawing from the lessons of history and analysis of the statute, we develop a novel framework for comparing § 1498 to other policy tools, including prizes, research grants, and patent buyouts. Under this framework, four features of § 1498 stand out: speed of invocation, flexibility in the scope of its use, post-crisis determination of compensation, and use of an impartial adjudicator. Whenever these four features are advantageous—which will be true in most national emergency situations, as we show—the U.S. government should strongly consider government patent use over patent buyouts and other policy tools. We show the advantages of these four features in a case study: government patent use to expand supply and access to the COVID-19 treatment remdesivir. Accordingly, and contrary to the conventional view of § 1498, we conclude that government patent should be an ordinary and important tool of government policy.

Munoz Tellez, Viviana, ‘The COVID-19 Pandemic: R&D and Intellectual Property Management for Access to Diagnostics, Medicines and Vaccines’ (SSRN Scholarly Paper ID 3640229, 10 April 2020)
Abstract: The ongoing rapid spread of COVID-19 is challenging the capacity of governments and of the World Health Organization (WHO) to timely put in place a global coordinated response to the pandemic. Developing countries and Least Developed Countries (LDCs) in particular in Africa are especially vulnerable to the unfolding effects of the public health crisis. A priority area for global collaboration is to advance research and development (R&D) for vaccines and medicines that are made available, affordable and accessible worldwide.There is currently no vaccine and no proven safe and effective direct therapy for COVID-19. There is also the need to accelerate testing capacity and tools in developing countries and LDCs with increased access to low-cost diagnostics. The approach to the management of intellectual property rights by research institutions, pharmaceutical and biotech companies and R&D funders will decisively affect availability and access, as well as the transfer of technology and know-how. Governments must ensure that they have legislative and procedural frameworks in place to enable them to over-come any patent, data exclusivity and trade secret barriers to procure and produce COVID-19 diagnostics, vaccines, medicines and other therapeutics.

Muscolo, Gabriella and Amalia Luzzati, ‘Pharma & COVID-19: An Overview of EU and National Case Law’ [2021] e-Competitions - Antitrust Case Laws Bulletin Article No 99409
Abstract: While the waiver of certain provisions of the TRIPS agreement for the prevention, containment and treatment of COVID-19 by the General Council of Word Trade Organization is still under discussion, this contribution provides some preliminary food for thought on possible alternatives.

Mwangi, Jacquelene, ‘COVID-19 and the “Unlocking” of Innovation: Reflections on Law and Innovation in Sub-Saharan Africa’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture)
Abstract: Extract from Introduction: I will reflect on the logics that have obscured innovation namely, international intellectual property law and formal organization of innovation through ‘national innovation systems’. These two combine under the banner of legal modernization and economic growth, and have collectively undermined innovation that does not fit into their premises.

Ncube, Caroline, ‘The Musings of a Copyright Scholar Working in South Africa: Is Copyright Law Supportive of Emergency Remote Teaching?’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture)
Introduction: As we were reminded on twitter recently, The Statute of Anne, the world’s first copyright law, came into effect on April 10, 1710, three centuries and a decade ago. Its title reads in part, ‘An Act for the Encouragement of Learning…’. The veritable links between copyright and the right to education have been established by several scholars …The Statute of Anne is a forebear of South African copyright law which has its roots in English copyright law … Against this background, this post asks ‘is copyright still true to its original intent and is it supportive of emergency remote teaching in alignment with the right to education?’

Nithyananda, KV, ‘COVID-19 Vaccines Legal and Consumer Issues’ (2021) 56(15) Economic and Political Weekly 17–21
Abstract: The Epidemic Diseases Act, 1897 and National Disaster Management Act, 2005 grant the Government of India a great deal of autonomy and control in declaring an infectious disease as a pandemic and in suspending citizen’s rights. Three distinct but related legal issues regarding the government’s handling of intellectual property rights under the Trade Related Aspects of Intellectual Property Rights Agreement of the World Trade Organization, consumer rights, and product liability for the COVID-19 vaccines are discussed, as the raging pandemic has created uncertainties in the implementation of these laws.

Ola, Kunle, ‘The Role of Traditional Knowledge in the COVID-19 Battle’ (SSRN Scholarly Paper No ID 3649053, 26 June 2020)
Abstract: This article addresses the role of traditional medicine in the race to find a cure for the corona virus (COVID-19). It situates traditional medicine within the traditional knowledge and Intellectual Property discussion. The paper discusses the increased gravitation towards using traditional medicine but also identifies the existence of scepticism towards its use. The paper calls on the African and indigenous communities who make up a large portion of the traditional medicine community to play their role in the fight against COVID-19. The battle is real, the coronavirus ground is an intersecting one and the solution is out there, but we do not know for sure where the solution would come from and what quarters it will come from. It could be traditional medicine, medical science, or a curious combination of both. This paper advocates for collaboration, it advocates that we join hands to fight the virus. It advocates inclusion rather than exclusion.

Ouellette, Lisa Larrimore et al, ‘Innovation Institutions and COVID-19’ (SSRN Scholarly Paper No ID 3826687, 14 April 2021)
Abstract: The COVID-19 crisis has starkly illustrated both the strengths and limitations of U.S. biomedical innovation institutions as deployed to fight a pandemic. These innovation institutions include not just intellectual property law, but also other legal systems that structure incentives for production and allocation of knowledge goods, including regulation by health agencies like the Food and Drug Administration, programs like Medicare and Medicaid that govern healthcare reimbursement, and government subsidies for research and development through agencies such as the National Institutes of Health. In this collection of essays from March 2020 through April 2021, originally published at Written Description, we explore the response of these legal institutions to a variety of COVID-19-related technologies including vaccines, diagnostics, pharmaceutical treatments, and medical devices. While each technology brings its own challenges, we find a number of common innovation inefficiencies present during the COVID-19 pandemic, such as a lack of robust interagency coordination, poor incentives to generate health information, and persistent difficulties in manufacturing health care technologies at scale. In addition, throughout our work we highlight inequities in the healthcare innovation ecosystem related to race, gender, wealth, and geography. Although U.S. innovation institutions have resulted in some remarkable successes—such as the record-breaking speed of vaccine development—the pandemic has also drawn attention to innovation policy failures. Policymakers should focus on addressing these problems now—before the next pandemic strikes.

Panicker, Krishnaveni A, ‘Exempting Covid Vaccines from IPR Laws: Its Impacts and How Far Can it be Effective’ (2021) 25 Supremo Amicus Journal (unpaginated)
Abstract: The developing countries specifically and undoubtedly were in a very precarious situation throughout the pandemic, considering the availability of vaccines. To equalize the huge disparity in the vaccination rates between the advanced and developing countries, it is very necessary that IPR laws be compromised with, and situation be handled with equal access to the vaccine given to everyone. This paper emphasizes on the need to temporarily do away with IPR laws that ensures free flow and timely access of vaccines. Nevertheless, this can be a hindrance to research and can incentivize innovations in the field. Moreover, the suspension of IPR laws is necessarily coupled with compromise in the TRIPS agreement, whose legal implications are discussed herein. WTO, being the international body authorized for these negotiations related to waiving of IPR laws do not contain specified deadlines for the completion of these procedures and can go on for lengthy bouts of time. This paper also aims to throw light on the degree of effectiveness that can be instilled in the production of vaccines by waiving of IPR. Mere waiving of patent rights are not enough to kick-start production in developing countries because it is not humanly possible to replicate pharmaceuticals even if they are not protected by IPR. Therefore, it is not only necessary to remove the hurdles presented by patents removed but also to ensure that appropriate tech transfers are in place. The former without latter is meaningless and this paper discusses about the same in brief and also about the complications possessed by the waiving of IPR in brief. Therefore, entirely stressing on dissolving patent rights is not sufficient for ensuring equitable distribution of vaccines and equal production of vaccines.

Paradise, Jordan, ‘COVID-IP: Staring down the Bayh–Dole Act with 2020 Vision’ (2020) 7(1) Journal of Law and the Biosciences, Article lsaa073
Abstract: As the human and economic toll of the COVID-19 coronavirus steadily escalates, there is extreme uncertainty regarding the timeframe for prevention, detection, and treatment. 1 There is also concern about the eventual costs associated with approved products and the barriers to access created by the patent system. Industry, government, and academic collaborations are leading the charge in the discovery race, partnerships which have triggered calls for the activation of the federal governments so–called ``march–in rights’’ established in the Bayh–Dole Act. 2 The Bayh–Dole Act dramatically altered the patent protections available to federally funded institutions and initiated a 40-year debate over appropriate incentives for innovation and the scope of the government’s authority. The COVID-19 pandemic provides an opportunity to reflect on the purpose and impact of the historic legislation as well as contemplate the implications for our public health future. Patent rights for therapeutic compounds, methods of delivery, and medical diagnostics will significantly impact access to and cost of life-saving innovations. This article examines current calls for the U.S. government to utilize governmental march–in rights to quell concerns about patent monopolization and product pricing in the face of our current pandemic.

Pila, Justine, ‘Reflections on a Post-Pandemic European Patent System’ [2020] European Intellectual Property Review (forthcoming)
Abstract: Against the backdrop of COVID-19, this Opinion essay proposes three ways to improve the European patent system without the need for legislative reform. Each has particular implications for drug patenting, and reflects an interpretive conception of law and legal legitimacy as requiring the application of legislation in accordance with moral values, including those expressed in constitutional instruments. If adopted, the proposals would: restrict the patentability of second medical indications and anchor assessments of inventive step more firmly to patent policy; expand assessments of the moral and public policy implications of patenting inventions and extend the disclosure duties of applicants; and adapt the FRAND licensing system to cover essential medical technologies.

Ramraj, Victor V and Aman Gebru, ‘COVID-19 Vaccines: Intellectual-Property Challenges and Transnational-Legal Opportunities’ (University of Victoria, UVic Graduate Student Law & Society Research Group Publications (video), 9 April 2021)
Abstract: In October 2020, India and South Africa proposed the World Trade Organization (WTO) to temporarily suspend trade-related intellectual property rights to COVID-19 vaccines and technologies. The proposal aims to ensure that not only the wealthiest countries will be able to access and afford those vaccines and technologies. After the proposal was presented, analysts claim that a ‘vaccine apartheid’ has already been created. In response, in March 2021, Dr. Ngozi Okonjo-Iweala, Director-General of the WTO, invited countries and manufacturers to implement a framework that would provide developing countries with more opportunities to access COVID-19 technologies. On April 9, 2021, the UVic Graduate Student Law & Society Research Group hosted an academic discussion between Professor Victor V. Ramraj (University of Victoria-Faculty of Law) and Professor Aman Gebru (Duquesne University-School of Law). Both speakers 1) explained the proposal that India and South Africa presented to the WTO; 2) discussed other initiatives to facilitate access to COVID-19 vaccines and technologies like the COVAX initiative, which is co-led by the World Health Organization (WHO), CEPI, GAVI, and UNICEF; and 3) explored relevant legal, socio-economic, ethical, political, and international issues that could facilitate or restrict access to COVID-19 vaccines and technologies. Therefore, this event was one of the first (if not the first) thoughtful critical-legal discussions about the challenges and opportunities emerging from initiatives aiming to ensure global equitable access to COVID-19 vaccines and treatments, such as the initiative proposed by India and South Africa or COVAX.

Ranjan, Prabhash, ‘Compulsory Licences and ISDS in Covid-19 Times: Relevance of the New Indian Investment Treaty Practice’ (2021) 16(7) Journal of Intellectual Property Law & Practice 748–759
Abstract: Foreign investors are increasingly making use of investor-State dispute settlement (ISDS) to enforce their intellectual property rights. In this context, and taking into account the significance of compulsory licences (CLs) as a regulatory tool to fight the Covid-19 pandemic, this article studies India’s new investment treaty practice on the issuance of CLs. The article finds that India’s new investment treaty practice elucidates how India can issue CLs without worrying about investor-state dispute settlement claims.

Rimmer, Matthew, ‘The People’s Vaccine: Intellectual Property, Access to Essential Medicines, and the Coronavirus COVID-19’ [2021] Journal of Intellectual Property Studies (forthcoming)
Abstract: This paper explores intellectual property and access to essential medicines in the context of the coronavirus COVID-19 public health crisis. It considers policy solutions to counteract vaccine nationalism and profiteering by pharmaceutical companies and vaccine developers. This paper considers the campaign for the development of a People’s Vaccine led by the People’s Vaccine Alliance, UNAIDS, Oxfam and Public Citizen. The WHO has established the ACT Accelerator in order to boost research, development, and deployment of COVID-19 technologies. However, the operation of COVAX thus far has been falling short of its original ambitions. The Medicines Patent Pool has expanded its jurisdiction to include the sharing of intellectual property related to COVID-19. Meanwhile, Costa Rica has proposed a COVID-19 Technology Access Pool – an idea for a new institutional structure which has been taken up by the WHO. In the context of the coronavirus public health crisis, there has also been discussion of the use of compulsory licensing and crown use to counteract profiteering and anti-competitive behavior. There has been a push by Universities Allied for Essential Medicines (UAEM) and others for the public licensing of COVID-19 technologies developed with government funding. The Open COVID Pledge has been taken by a number of intellectual property owners. In response to the assertion of proprietary rights in respect of COVID-19 technologies, the open movement has championed the development of Open Science models of science. India and South Africa have put forward a waiver proposal in the TRIPS Council to enable countries to take action in respect of COVID-19 without fear of retribution under trade laws. While the United States has been willing to support a TRIPS Waiver for vaccines, there remain a number of opponents to a TRIPS Waiver – including the European Union, Germany, Japan, and Switzerland. This paper makes the case that international intellectual property law should accommodate a People’s Vaccine.

Roy, Gopal Krishna, ‘An Economic Case for Waiving Intellectual Property Rights on COVID Vaccines’ (SSRN Scholarly Paper ID 3851117, 21 May 2021)
Abstract: India and South Africa approached World Trade Organization (WTO) to negotiate the temporary waiver of Intellectual Property (IP) rights on COVID-19 vaccines to remove the artificial barrier of patents and boost vaccine production. This commentary advocates for the waiver of IP rights on COVID-19 vaccines. We make a case for the debate on the validity of the COVID-19 vaccine to qualify for a patent. We briefly review the evidence on the association between vaccination and virus mutations. Evidence suggests that waiving patents is vital to increase vaccination worldwide and curb mutation and reduce the risk of more infectious new variants. We discuss the need for non-pharma sectors and the governments of developing countries with large informal sectors to lobby against the IP rights on COVID vaccine because of the economic cost borne by them due to new variants induced fatalities and lockdowns.

Sachs, Rachel et al, ‘Innovation Law and COVID-19: Promoting Incentives and Access for New Healthcare Technologies’ in I Glenn Cohen (ed), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, forthcoming, 2022)
Abstract: As the devastating COVID-19 pandemic first swept the globe, it posed a crucial test of biomedical innovation institutions. Containing the virus required developing new technologies including diagnostic tests, pharmaceuticals, and vaccines; manufacturing these technologies at enormous scale; and rapidly distributing them globally. This, in turn, required mobilizing and coordinating scientists, industry, and government at levels not seen since World War II. Underlying the successes and failures of these efforts was the complex legal architecture of biomedical innovation and access.This chapter considers how this legal architecture both encouraged and impeded the development and allocation of new technologies in the fight against COVID-19—and provides lessons about how it might be better deployed for future pandemics. The chapter focuses on three key areas of innovation law: biopharmaceutical regulation, healthcare reimbursement, and government subsidies for research and development. The first part of this chapter discusses the need to coordinate government agencies in a public health emergency, especially as such coordination pertains to developing, validating, and distributing diagnostic tests. The second part counsels agencies to ensure that early access to therapies in a public health crisis does not obviate developers’ ability (or incentive) to generate robust information about such therapies’ safety and efficacy. The third relays lessons about the successes of incentives for COVID-19 vaccine development—and their failures for vaccine distribution. Addressing the flaws in U.S. biomedical innovation institutions that have been highlighted by COVID-19 will help avoid repeating these failures in the next pandemic.

Santos Rutschman, Ana, ‘Intellectual Property as a Determinant of Health’ [2021] Vanderbilt Journal of Transnational Law (forthcoming)
Abstract: Public health literature has long recognized the existence of determinants of health, a set of socio-economic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as ‘forces and systems’ consisting of ‘factors combin[ing] together to affect the health of individuals and communities.’ Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are seldom treated as an integral part of analyses using these frameworks, even though IP bears direct effects on the dynamics of several determinants of health, such as access to health goods and health services. This article conceptualizes post-TRIPs IP as a contributing element to the literature on the socio-economic determinants of health. IP norms and policies have long been understood as playing a role in outcomes that closely align with determinants frameworks, but interventions inspired by institutions relying on determinants frameworks routinely fail to consider the role of international IP regimes. The article explores two consequences of this dissociation: first, it argues that TRIPs-implemented IP materially affects several determinants of health, both at the social and economic levels; and second, it argues that IP should be regarded on equal footing with other canonically recognized determinants of health. While taking steps towards the development of an IP framework that can be articulated with, and incorporated by, literature on the determinants of health, the article presents three short case studies on pharmaceutical and agricultural technologies—HIV prophylactic drugs (Truvada); drugs and vaccines needed for epidemic and pandemic preparedness (Ebola vaccines and COVID-19 treatments like remdesivir); and genetically modified rice crops.

Santos Rutschman, Ana, ‘Property and Intellectual Property in Vaccine MarketsTexas A&M University Journal of Property Law (2021, forthcoming)
Abstract: As biopharmaceutical forms of technology, vaccines constitute one of the most important tools for the promotion and maintenance of public health. Tolstoy famously wrote that ‘[h]appy families are all alike; every unhappy family is unhappy in its own way.’ Vaccine markets offer perhaps one of the most extreme embodiments of Tolstoy’s principle in the field of biopharmaceutical innovation. Vaccines are often described as one of the most unprofitable types of biopharmaceutical goods, under-incentivized from a research and development (R&D) perspective, and routinely failing to attract sufficient investment from traditional funders in biopharma. In this sense, and despite the scientifically well-established value of vaccines from a public health perspective, vaccine markets are often portrayed as a collection of unhappy families. Yet, at least throughout the developed world, there are plenty of examples of steadily profitable vaccine markets, as is the case of recently developed vaccines targeting the human papilloma virus (HPV). The Essay begins by mapping this dualism in vaccine R&D and commercialization, describing both ‘happy’ and ‘unhappy’ markets. It then connects the development of new vaccines with the default legal regime to promote innovation in the biopharmaceutical arena: the patent system. In exploring possible solutions for transactional problems arising in connection with the development of vaccine technology in the context of infectious disease outbreaks, the Essay asks whether the rights covering vaccine technologies are best understood as property rights or as something else. This inquiry is of course but a fragment of a much larger interrogation of the nature and mechanics of intellectual property systems: are intellectual property rights—and rights arising out of the grant of patents in particular—more like property or akin to something else? Arguing that under the current non-committal position of the Supreme Court there is room for understandings of patent rights that are not property-centric, the Essay concludes by exploring how less property-like protection—in the form of a liability regime for critical components of vaccine technology—can remove some of the most salient transactional obstacles to the development and commercialization of new vaccines targeting infectious disease pathogens like Ebola, Zika and COVID-19.

Santos Rutschman, Ana, ‘The COVID-19 Vaccine Race: Intellectual Property, Collaboration(s), Nationalism and Misinformation’ (2021) 64(1) Washington University Journal of Law & Policy 167–202
Abstract: The COVID-19 pandemic has brought a national and global vaccine race. This Article examines the race with respect to contemporary frameworks for biopharmaceutical research and development. Specifically, this Article focuses on the effect of patents, pre-production agreements, public-private partnerships, and vaccine misinformation. This Article analyzes lessons learned from the COVID-19 pandemic, advocates for promoting vaccine affordability and equity, and suggests modifications to existing preparedness frameworks to prepare for upcoming outbreaks of infectious disease.

Santos Rutschman, Ana, ‘The Intellectual Property of COVID-19’ (Saint Louis University Legal Studies Research Paper No 2020–28, 11 September 2020)
Abstract: The response to COVID-19 is indissolubly tied to intellectual property. In an increasingly globalized world in which infectious disease pathogens travel faster and wider than before, the development of vaccines, treatments and other forms of medical technology has become an integral part of public health preparedness and response frameworks. The development of these technologies, and to a certain extent the allocation and distribution of resulting outputs, is informed by intellectual property regimes. These regimes influence the commitment of R&D resources, shape scientific collaborations and, in some cases, may condition the widespread availability of emerging technologies. As seen throughout this chapter, COVID-19 has exposed the shortcomings of ingrained reliance on intellectual property as a channel for the production and dissemination of medical technologies needed to address the problems posed by pandemics and epidemics. At the same time, COVID-19 has brought new life to countervailing efforts to explore legal and policy mechanisms to potentially offset some of the problems posed by the pervasiveness of, and shortcomings associated with, intellectual property dynamics. In tracing the dual ways in which intellectual property has affected preparedness for, and the response to, COVID-19, this chapter highlights three features of contemporary intellectual property regimes and examines their impact on innovation(s) needed to address public health crises. First, it explores the incentives function of patent law and policy, which places considerable emphasis on market-driven investment in R&D on medical technologies. In so doing, intellectual property becomes one of the driving forces of the commodification of goods—vaccines, drugs or ventilator parts, for example—which are best understood as public health goods. Second, the chapter illustrates how intellectual property has reinforced an ethos of siloed R&D, as illustrated by the COVID-19 vaccine race, which at the time of writing includes hundreds of separate vaccine development projects. These siloes further extend into the allocative domain: with the development of medical technologies now largely steeped in proprietary frameworks, several countries have resumed the practice of reserving significant amounts of emerging technologies for their domestic populations, thus curtailing the possibility of equitable transnational approaches to a global public health crisis. This approach is commonly known in the field of vaccines as ‘vaccine nationalism.’ Nationalism skews the distribution of medical technologies developed during a pandemic, reducing opportunities for transnational coordination and potentially limiting access to these technologies by populations in economically disadvantaged parts of the world.The chapter ends nonetheless on a positive note, as COVID-19 has also made it abundantly clear that the legal infrastructure needed to address many of these problems is already in place. Early in the pandemic, several countries signaled that they would rely on intellectual property mechanisms to ensure broad and equitable access to medical technologies developed during (and possibly after) the pandemic, such as vaccines and treatments for COVID-19. These mechanisms embody different types of commitments to share intellectual property, data and knowledge. At the allocative level, a significant number of countries joined an ad hoc vaccine distribution facility (COVAX) coordinated by Geneva-based international organizations. These efforts, albeit nascent and, in many cases, likely transient nature, constitute meaningful steps towards a better innovation ecosystem for medical technologies needed to prevent and respond to future pandemic.

Santos Rutschman, Ana, ‘The Mosaic of Coronavirus Vaccine Development: Systemic Failures in Vaccine InnovationJournal of International Affairs (21 March 2020)
Abstract: Scientists are racing to develop vaccines against the novel coronavirus. While some vaccine candidates may enter the market in record time, the current vaccine innovation ecosystem exposes governance lacunas at both the international and domestic levels.

Sarnoff, Joshua D, ‘COVID-19 Highlights Need for Rights to Repair and Produce in Emergencies’ (SSRN Scholarly Paper ID 3636551, 19 May 2020)
Abstract: The COVID-19 pandemic has highlighted the need for explicit rights to repair and to supply needed medical products during emergencies. Current law may deter such actions because of the risk of private intellectual property infringement and tort liability, and contracts may also prohibit making legitimate repairs. Legislation is needed to authorize in advance the right to repair and production rights for defined emergencies.

Sarnoff, Joshua D, ‘The Right to Repair in a Pandemic’ [2020] Northwest University Law Review, NULR of Note 1–3
Abstract: The COVID-19 pandemic has highlighted the need for explicit rights to repair needed medical products during emergencies. Current law may deter such actions because of the risk of private intellectual property infringement liability, and contracts may also prohibit making legitimate repairs. Congress should consider adopting limited exceptions to infringement to assure the ability to make repairs.

Schneider, Marius and Nora Ho Tu Nam, ‘Africa and Counterfeit Pharmaceuticals in the Times of COVID-19’ (2020) 15(6) Journal of Intellectual Property Law & Practice 417–418
Abstract: At a time where counterfeit and substandard medications and critical medical supplies, such as hand sanitizers and face masks, are flooding the world market due to the COVID-19 pandemic, the 2020 report from the Organisation for Economic Co-operation and Development and the European Union Intellectual Property Office on ‘Trade in Counterfeit Pharmaceutical Products’ finding that trade in falsified medicine reached USD 4.4 billion in 2016, threatening public health and safety, while enriching criminals and organized crime, is very timely.

Sharma, Sarita K, ‘A Study on Drug Counterfeiting in the Light Of Covid-19 Pandemic: Indian Scenario’ (2021) 25 Supremo Amicus Journal (unpaginated)
Abstract: The world has been facing one of the most challenging times due to the Covid- 19 pandemic. The novel coronavirus comes with new variants and strains that are believed to be more contagious and dangerous. The world has witnessed millions of deaths and affected persons due to COVI-19 disease. There are no specific medicines and vaccines available for its cure, much less with firm conviction and certainty. The scientists and researchers have been painstakingly working round the clock to find a concrete preventive and curative solution for it. However, the pandemic has exploded the drug market and as a result, it has attracted many globally to take it as an emerging lucrative business opportunity. The arrival of new medicines and vaccines has increased their demands many folds, and so the temptations of the looters and fraudsters, who want fast cash. The consequence of the ongoing menace is the sharp hike in counter pharmaceutical products globally. However, in the present alarming state, where the racketeers are devising innovative techniques and methods to engulf the pharma market with counterfeit products, it is imperative to realize that drug counterfeit is a serious crime and not limited to IPR Crime. It is an economic or a whitecollar crime which affects the social order. Furthermore, using online portals as an interface for advertising and selling fake pharma products has brought the crime of drug counterfeiting into the ambit of cybercrime. Therefore, in this milieu, a robust mechanism is required to control and prevent the menacing pose by drug counterfeiting. This paper has attempted to study and explore the linkage or intersectional area between the economic or white-collar crime, corporate crime, IPR crime, and cybercrime from the viewpoint of the multidimensional effect and consequences caused by the commission of counterfeit drugs or medicines. An attempt has been made to explore that up to what extent the law provided in the criminal statute book of India is effective in preventing and controlling the crime efficiently.

Shoebridge, Grant and Jennifer Enmon, ‘COVID-19 Patent Rights in the Time of a Pandemic’ (2020) 33(2) Australian Intellectual Property Law Bulletin 35–38
Abstract: The COVID-19 pandemic and the urgent global need for effective treatments and/or a vaccine have implications for Australia’s new Crown use and compulsory licensing patent provisions as well as similar provisions from around the globe. With these provisions, a government and in some cases a third party can access and exploit a patented invention without authorisation of the patentee.

Stothers, Christopher and Alexandra Morgan, ‘IP and the Supply of COVID-19-Related Drugs’ (2020) 15(8) Journal of Intellectual Property Law & Practice 590–593
Abstract: Considers the implications for intellectual property law of the widespread collaboration between pharmaceutical companies in developing treatments for COVID-19. Examines the mechanisms developed in the UK, the US, Austria, Germany and the Netherlands for bypassing trading rights and patent rights.

Tham, Benjamin and Mark Findlay, ‘COVID-19 Vaccine Research, Development, Regulation and Access’ (SMU Centre for AI & Data Governance, Research Paper, 30 June 2020)
Abstract: Will the regulation of a vaccine for COVID-19 be left in the hands of health standards administrators and research conventions or will an alliance of political and economic imperatives, chorused by a loud philanthropic/humanitarian cadre push both the roll-out and access challenges? This brief review identifies current developments in the vaccine race and reflects on the way that political, commercial, hegemonic and humanitarian realities will influence law’s regulatory relevance particularly through intellectual property regimes. The conclusion, because of this speculative moment, is watch this space.The paper accepts the argument that substantive IP rights on their own are not to blame for adverse access outcomes, if they arise. But the need for compulsory licences and TRIPS exceptions reveals that a state cannot rely on the good intentions of successful manufacturers to promote social good when profits are potentially significant and market competition is constrained. The political and economic externalities pressuring more socially responsible commercial decision-making in the vaccine case are unique but even so law’s normative framework for justice and fairness is a counterbalance to private property exclusion when world health is at stake.

Thambisetty, Siva et al, 'The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to End the COVID-19 Pandemic' (LSE Legal Studies Working Paper, forthcoming, 24 May 2021)
Abstract: The structure of global intellectual property law as incorporated in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is implicated in the current lack of COVID-19 vaccines, medical equipment, medicines and diagnostics (hereafter, ‘health-technologies’), which are needed to combat the pandemic. Although equitable access to vaccines is in the moral, political and economic interests of the global public and requires global solidarity, the phenomenon of COVID-19 ‘vaccine nationalism’ has brought into sharp relief the misalignment of current legal and financial incentives to produce and distribute vaccines equitably. The crisis further demonstrates the failure of high-income countries (HICs) to realise the promise they made at the time of the TRIPS negotiations in 1994, that by agreeing to the terms of TRIPS, lower and middle-income countries (LMICs) would benefit from technology transfer and the building of productive capacity. As such, the current crisis is revealing not only of inadequacies of how to deal with global emergencies, but also of deficiencies within the international ‘patent bargain’ itself. This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal initially put forward by India and South Africa in October 2020, which, as of May 2021, is supported by more than 60 states, and which has received statements of support from the World Health Organisation (WHO). We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance.The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. We make two arguments to this effect: first, the TRIPS waiver is a necessary and proportionate legal measure for clearing intellectual property (IP) barriers in a direct, consistent and efficient fashion, enabling the freedom to operate for more companies to produce COVID-19 vaccines and other health technologies without the fear of infringing another party’s IP rights and the attendant threat of litigation; and second, the TRIPS waiver acts as an important political, moral and economic lever towards encouraging solutions aimed at global equitable access to vaccines, which is in the wider interest of the global public.

Van Erp, Sjef, ‘Who “Owns” the Data in a Coronavirus Tracing (and/or Tracking) App?’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: To combat the spread of the COVID-19 virus, e-health has taken a sudden leap forward. Already use cases were studied to see if by means of advanced IT tools, particularly e-health applications (apps), patients could be monitored from their homes so they did not need to visit a hospital for frequent checks. The corona pandemic gave rise to the rapid development of tracing (and/or tracking) e-health apps, which allow quickly finding the source of an infection as well as others who might have been infected because they were in the close vicinity of someone who became ill. The development and widespread use of these apps makes it even more urgent than it already was to answer questions regarding to whom the data gathered through such apps belong and what belonging means. Can the owner of the mobile device be considered the ‘owner’ of the data, what does ‘ownership’ then mean, do other stakeholders (such as health care providers, public health authorities) also have a claim to ‘ownership’?

Vučković, Romana Matanovac, Ivana Kanceljak and Marko Jurić, ‘Cultural Heritage Institutions During and after the Pandemic: The Copyright Perspective’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 379–397
Abstract: The COVID-19 pandemic has imploded the traditional ways in which creative, cultural and artistic content are presented and consumed. Museums, libraries, archives, and other cultural institutions have been closed in lockdowns all around the European Union, and their content presented and consumed online. This paper will analyse how copyright rules affect cultural heritage institutions (publicly accessible libraries or museums, archives or film or audio heritage institutions) in the digital age. Four recent legal documents at the European level refer to the digitalisation of their collections and the digitised content’s exposure to the public in the Digital Single Market. These are Directive 2001/29/EC, Directive 2012/28/EU, Directive (EU) 2019/790 and Directive (EU) 2019/1024. This paper willfirst analyse how exclusive rights are regulated for authors, other creators, publishers, and producers in the digital age. Those rights need to be respected and exercised effectively by their owners. On the other hand, there is also a public interest, in that digitisation and access to digitised content should be free in cultural heritage institutions. To resolve the tension inherent in this relationship is not easy. The recent rapid change in consumption of creative, cultural and artistic content in the Single Digital Market (due to the pandemic caused by the COVID-19 virus) has triggered the need for swifter digitisation of cultural heritage institutions’ collections. The European legal framework offers some solutions to this need, which will be presented here. It does not resolve the situation generally, but refers to particular issues, such as orphan works, out-of-commerce works, text and data mining and the re-use of public sector information. In general, copyright protection prevails. Nevertheless, the tendencies towards free access grow stronger every day. This paper will analyse how these four directives interact with each other in the effort to resolve the tension between copyright, digitisation and free access to digitised content in cultural heritage institutions. At the end, two ideas for a new balance are presented.

Wachowicz, Marcos, ‘Open Access to Scientific Innovation as a Means to Combat COVID-19’ (2020) 69(8) GRUR International: Journal of European and International IP Law 783–784
Extract: A new policy of global scale is needed and it should prioritize licensing and open support, technology transfer, and new partnerships for technical access. As to the market, there is need for a commitment not to increase drug prices during the pandemic…. The challenge is not whether intellectual property exists, but how it will be exercised. In this area there is a great opportunity to practice intellectual property management, focusing on public interest, particularly during a pandemic. Thus, in the case of COVID-19, thinking about open licensing aims to eliminate a barrier to the production capacity of the input needed to face the pandemic.

Walker, John and Dr Dallas L Wilkinson, ‘Protection, Enforcement and Licensing of Trade Secrets in View of the COVID-19 Pandemic’ (2021) 56(3) les Nouvelles - Journal of the Licensing Executives Society 245–249 [pre-print on SSRN]
Abstract: On June 24, 2020, the LESI Chemicals Engineering Environment Materials Committee (CEEM) held a webinar on the important topic of trade secret management and more broadly, IP management. The webinar drew together expert panelists from a wide range of industries and regions within the CEEM sector. This article further explores the issues discussed at that webinar.

Xue, Qiwei Claire and Lisa Larrimore Ouellette, ‘Innovation Policy and the Market for Vaccines’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa026
Abstract: Vaccines play a crucial role in improving global public health, with the ability to stem the spread of infectious diseases and the potential to eradicate them completely. Compared with pharmaceuticals that treat disease, however, preventative vaccines have received less attention from both biomedical researchers and innovation scholars. This neglect has substantial human and financial costs, as vividly illustrated by the COVID-19 pandemic. In this article, we argue that the large number of ``missing’’ vaccines is likely due to more than lack of scientific opportunities. Two key aspects of vaccines help account for their anemic development pipeline: (1) they are preventatives rather than treatments; and (2) they are generally durable goods with long-term effects rather than products purchased repeatedly. We explain how both aspects make vaccines less profitable than repeat-purchase treatments, even given comparable IP protection. We conclude by arguing that innovation policy should address these market distortions by experimenting with larger government-set rewards for vaccine production and use. Most modestly, policymakers should increase direct funding—including no grants and public-private partnerships—and insurance-based market subsidies for vaccine development. We also make the case for a large cash prize for any new vaccine made available at low or zero cost.

Yanisky-Ravid, Shlomit and Regina Jin, ‘Summoning a New Artificial Intelligence Patent Model: In the Age of Pandemic’ (SSRN Scholarly Paper ID 3619069, 4 June 2020)
Abstract: To combat the fast-moving spread of the pandemic we need an equally speedy and powerful tool. On the forefront against COVID-19, for example, AI technology has become a digital armament in the development of new drugs, vaccines, diagnostic methods, and forecasting programs. Patenting these new, nonobvious, and efficient technological solutions is a critical step in fostering the research and development, the huge investments as well as the commercial processes. This article considers the challenges of the current patent law as they apply to AI inventions in general and especially in the age of a global pandemic. The article proposes a novel solution to the hurdles of patenting AI technology by establishing a new patent track model for AI inventions (including the inventions that are made by AI systems and creative AI systems themselves). Unlike other publications promoting either complete abandonment of AI related patents, or advocating to maintain current patent laws, or recommending minor adjustment to patent laws, this article suggests a novel model of separate patent venue solely targeting AI inventions. The argument of this article is based on four pillars: the difficulty of having a patent-eligible subject matter, the hurdle of the ‘blackbox’ conundrum, the confusion of who is ‘a person of ordinary skills in the art’ (“POSITA"), and the criticality of establishing a new AI patent track model, a crucial step, especially during a global epidemic.The first pillar of the argument is the difficulty of having a patent-eligible subject matter in AI inventions. We therefore propose the new AI patent track model that would extend the scope of patent protection to cover creative AI systems, including both the algorithms and trained models, and AI-made inventions in order to, inter alia, incentivize investments of the ‘Multi-Players’.The second pillar of the argument of the argument is the hurdle posed by the ‘blackbox’ conundrum of AI systems that undermines the explainability and transparency of the inventions. In analogy to already existing rules applied to microorganism patents that are hard to describe, we advise a depository rule for AI working models to sufficiently describe the otherwise inexplicable inventions.The third pillar arises from the confusion of who is a person of ordinary skills in regard to the nonobviousness assessment of AI inventions. We submit an alternative standard of ‘a skilled person using an ordinary AI tool in the art’ under the new track model to enable the evaluation of the patentability of complex AI inventions.The fourth pillar of the argument is the criticality of establishing a new AI patent track model on the grounds that the current patent law regime has posed substantial hurdles and uncertainties for patenting AI inventions with regard to almost all patentability requirements. We analyzed each of the requirements to demonstrate that most, if not all, aspects of patent law are not suitable in the AI era; only a revolutionary new patent model specific for AI inventions could solve all the concerns while maintaining the patent incentive for innovations.Our model also suggests an expedited examination with the aid of AI tools and a shortened patent lifetime in light of the fast AI development and technology elimination speed. The article concludes with the hope to harness AI technology for the wellbeing of humanity, in general and especially during tough times in the current COVID-19 era and in general.

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