Patent Pooling and its Contribution to Collaborative IP Attempts at Targeting Patent Access

April 09, 2020
Post by Tina G. Yin Sowatzke, Pharm.D.

Growing concerns surrounding effective treatment options for combating Covid-19 has sparked global discussion involving the issue of access to innovations directed toward eradicating the novel virus. Recently, the Costa Rican government requested that the World Health Organization (WHO) create a voluntary patent pool to collect patent rights, regulatory test data, and other information to be shared for developing drugs, vaccines and diagnostics. In a statement on April 6, 2020, the WHO Director-General, Tedros Adhanom Ghebreyesus, endorsed the idea of creating such a voluntary patent pool. The hope is to create an attractive opportunity for governments, as well as industry, universities and non-profit organizations to collaborate and work together.

Traditionally, the World Intellectual Property Organization (WIPO) has defined patent pools as “an agreement between two or more patent owners to license one or more of their patents to one another or to third parties.” With a patent pool, patent rights are aggregated and made available to member and non-member licensees. The terms of a patent pooling license agreement are generally beneficial to all participants by providing free or low-cost access to all pooled technologies. Typically, the pool allocates third party incoming license fees by a fair distribution, sometimes based on each patent’s value. Theoretically, by entering into a patent pooling agreement, competitors become contributors, thereby potentially preventing a patent thicket (i.e.overlapping patent rights that require innovators to reach licensing deals for multiple patents from multiple sources) which can increase transaction costs and present barriers to the development of new products.

While the details of the WHO patent pool have not been determined, it has been indicated that the pool should allow free access or licensing on “reasonable and affordable terms.” Further, the extent to which participants may choose to place their intellectual property in the pool remains unclear.

The idea of a patent pool comes as countries move to consider compulsory licensing of patented products that may be useful in treatments against Covid-19.  In contrast to a compulsory license, a patent pool would acquire technologies from a larger number of participants, rather than on a drug-by-drug basis. This is not to say a voluntary patent pool will be a good option for all innovators. The decision depends on the needs and expectations of each individual licensor and comparing those expectations with the terms of the license agreement. However, given the extraordinary circumstances we are currently facing globally, these proposals for accessing innovations will certainly continue, and many patent holders will have to determine how, and to what extent, to provide access to their innovations.

Tina G. Yin-Sowatzke, Pharm.D. is an Associate Attorney in the MVS Biotechnology & Chemical Practice Group. To learn more, visit our MVS website, or contact Tina directly via email.

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