COVID-19 IP waiver could lead to ‘legal uncertainty’

A waiver could create confusion for research, pharma and biotech companies and the patented technology that has led to the development of vaccines. Catherine White reports for Intellectual Property Magazine from CIPA Congress 2021.

If the Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver for Covid-19 vaccines comes at all, it needs to be “very, very carefully balanced” so not to bring uncertainty, so said Grünecker’s Markus Grammel.

Speaking on the first day of the Charted Institute of Patent Attorneys’ virtual congress 2021, Grammel highlighted that there are several urgent questions surrounding the waiver proposed in October by South Africa and India, which seeks to enable the manufacture of generic versions in developing nations.

“The first question with the Covid-19 patent waiver is in which form would it be issued? The second question is how would it be implemented by all the different national states? Grammel asked, stating that this “is a very complex issue and it depends on all of these questions”.

The senior counsel added that the initiative, which would suspend vaccine patents held by pharmaceutical giants for the duration of the pandemic so less developed countries could produce the vaccine affordably and is yet to be finalised by the World Trade Organization, could lead to much “legal uncertainty”.

Grammel said, “In principal, I would say because it is a very uncommon measure, it would first bring legal uncertainty to the players and to research, pharma and biotech companies and a lot of the patented technology that led to the development of the vaccine… which has brought new technology platforms… that in the future will be used for a lot of different vaccines and even outside of infectious diseases. So I think that is highly problematic.”

He explained, “All of the companies you see, such as Moderna, BioNTech and CureVac have all been founded around the same time about 10 years ago, and as far as I know, they all have been founded out of universities and have all received funding at the beginning in one form or another (such as venture capital or private funding) and I’m pretty sure (although I haven’t looked at their early portfolios) that for all of these investments in these big companies in the early stage – which now 10 years later have got us the vaccines – they were based largely, most likely, on a solid IP-basis.”

CureVac’s Marcus Dalton agreed, commenting, “I think people have to realise that the R&A that Moderna, BioNTech and others have invested in for 10-12 years is by private investors and their return on investment is predicated on the IP.”

He stated, “Weakening the IP could dampen that investment.”

Sun Pharma’s Gaurav Sahal commented that it is important for the IP community to emphasise on these issues again because “what we do now will actually shape the future of IP and… innovation… and will leave its impression for a long time.”

He said, “Accessibility is very important, but at the same time protecting the innovation and taking care of the IP systems that we have in place is as equally important… the protections we take now will have long-lasting impact.

“It is very important that a very fine balance is found between incentives and the discouragement against the abusive deployment of patents.”

Date published: 15 September 2021

Related article: Vaccine scientists say patent waiver will not speed global vaccine roll-out.

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