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.

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.

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.

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, '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 'Assemblee 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.

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.

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.

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.

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.

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.

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.

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.

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. SS 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that SS 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 SS 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 SS 1498 to other policy tools, including prizes, research grants, and patent buyouts. Under this framework, four features of SS 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 SS 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.

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?'

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.

Paradise, Jordan, 'COVID-IP: Staring down the Bayh-Dole Act with 2020 Vision' (SSRN Scholarly Paper ID 3599621, 12 May 2020)
Abstract: As the human and economic toll of the COVID-19 coronavirus steadily escalates, there is extreme uncertainty about the timeframe for preventing, detecting, and treating it. 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. The Bayh-Dole Act dramatically altered the patent protections available to federally funded academic institutions and scientists and initiated a 40-year debate over appropriate incentives for innovation and the scope of the government's authority. The COVID-19 coronavirus 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. Existing and future patent rights for therapeutic compounds, methods of delivery, and medical diagnostics will significantly impact access to and cost of life-saving innovations. In the midst of rapid and wide-ranging research investigations, this article examines advocacy efforts urging the government to utilize governmental march-in rights to quell concerns about patent monopolization and product pricing. It also analyzes the Facilitating Innovation to Fight Coronavirus Act as it relates to impending COVID-19 coronavirus products.

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.

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 Markets' Texas 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 Washington University Journal of Law and Policy (forthcoming)
Abstract: Vaccines have long played a crucial role in the prevention, mitigation and eradication of infectious diseases. More than any other recent outbreak, the COVID-19 pandemic has brought the phenomenon of the vaccine race to the forefront of personal, national and global preoccupations. This symposium contribution examines the early features and takeaways of the COVID-19 vaccine race in four parts. The essay begins by situating the ongoing vaccine race into contemporary frameworks for biopharmaceutical research and development (R&D). Part II examines the role of proprietary and nationalistic modes of vaccine production and distribution, with an emphasis on the effects of patents and pre-production agreements on distributive outcomes of the COVID-19 vaccine race. Part III then turns to emerging efforts to counter overly patent-dependent and nationalistic approaches to vaccine R&D. It describes and assesses the role(s) played by the World Health Organization, as well as public-private partnerships like CEPI (the Coalition for Epidemic Preparedness Innovations) and Gavi, a Geneva-based vaccine procurement organization. Moreover, it offers a case study on COVAX, a quasi-global push and pull mechanism designed during the early stages of the COVID-19 pandemic to promote vaccine affordability and equity. Part IV concludes the essay by looking ahead to the end of the race and pondering the increasingly salient role of vaccine misinformation and disinformation in the uptake of emerging COVID-19 vaccines.

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 Innovation' Journal 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.

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.

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'?

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.

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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