The coronavirus crisis has left many traditional elements of business by the wayside. Among them is the might of intellectual property (IP) and businesses’ willingness to defend their patents and products to the hilt. The supercharged development of workable, effective vaccines against Covid-19 has been a triumph for the pharmaceutical industry and one that has involved a reworking of established norms.
Traditionally, pharmaceutical companies vigorously defend their IP rights and for good reason. “It’s foundational. It’s fundamental,” says Dr Anton Hutter of Venner Shipley, chartered patent attorney, biochemist and geneticist. “Pharmaceutical companies are commercial entities.”
Getting a drug to market costs an average of £1 billion and is the product of ten to twelve years of research and development (R&D). “The development of drugs is a risky, expensive business. It takes enormous time and energy to implement. Without patent rights, which give a monopoly for 20 years, vaccines and other drugs wouldn’t be developed,” says Hutter. “A drug company couldn’t recover its R&D costs.”
Yet some challenges are more important than a company’s rights to recoup its R&D costs and a global pandemic, which has claimed the lives of two million people, is one of those challenges.
Working together to tackle IP challenges
The first indications that companies were willing to forgo business as usual in support of the collective goal came in the earliest days of the pandemic. In those first few months, before therapeutic treatments for the impacts of the virus were discovered, too many people were dying because hospitals didn’t have enough ventilators. Putting aside competition, a collection of businesses came together to form the VentilatorChallengeUK Consortium, which focused on creating a workable, easy-to-manufacture ventilator.
The development of drugs is a risky, expensive business. Without patent rights, which give a monopoly for 20 years, vaccines and other drugs wouldn’t be developed
“In that setting, IP didn’t become too much of an issue because the guideline there from the top executives was ‘Just make this work and don’t worry too much about IP’,” says Dr Frank Tietze, head of innovation and IP management at Cambridge University Department of Engineering, who has studied the use of IP during the pandemic.
“This comes with some risks,” says Tietze. “You can get into IP struggles later on, but it was a lot of goodwill. That was remarkable from those companies that worry so much about IP.” It also set the tone for the months to come and acknowledged the scale of the problem ahead.
Developing and distributing a vaccine quickly
While the death toll from Covid-19 is already too great, one of the triumphs of the last 12 months has been the speed at which the pharmaceutical industry has developed a range of effective vaccines against the virus. They’ve done this, in part, by following the lead of the manufacturing companies that worked on ventilators, setting aside considerations of business and looking instead at the global health issue we all face.
“That change is something which is typical when we’re in situations like this,” says Richard Wilder, general counsel and director of business development at the Coalition for Epidemic Preparedness Innovations. In the late-1990s, seriously ill people in sub-Saharan Africa struggled to gain access to medicines for treatment of HIV/Aids; the costs were too great. Activists lobbied organisations to set aside their IP rights for the good of mankind and the World Trade Organisation implemented a decision that levelled out access to medicines.
“This kind of thinking continues to flow through issues like the one we’re dealing with today,” says Wilder.
Companies are still registering the rights to patents and other IP around the development of drugs and vaccines for Covid-19. But, as the pandemic ravages the planet, and quick, universal access to treatments is needed now, they’re not necessarily exercising them in the way they ordinarily would.
A number of big companies that felt able to support the fight signed up to the Open Covid Pledge, which promised to make their IP available, free of charge, to minimise the impact of the disease. Firms like IBM, Microsoft and Morgan Stanley joined, but big pharma was notable by its absence. That doesn’t mean they decided to put profit before saving lives, however. “It’s about drawing a distinction between the existence of intellectual property and its exercise,” says Wilder.
Could meaningful change to IP happen post-Covid?
“Pfizer, AstraZeneca and Moderna have all said they wouldn’t enforce their patent rights or make a profit on their sales,” says Hutter. “They’re not purely altruistic. They would never make the drug and make a loss. Oxford has said they’ll sell each jab at whatever it costs to make it in the first place. It’s harsh to say these big drug companies are in it for the money.”
The big question is how long that approach for the greater good will last. “People I’ve been working with at Imperial College London say ‘Today it’s Covid-19, but wouldn’t be surprised if it’s Covid-21 and 25’,” he says. “General scientific consensus is saying you might have to have an annual jab. Who’s going to pay for those?”
Patents and IP will still exist, even in the fight against Covid. “I don’t think that evolution would lead to a decision taken by governments that they’re going to exclude vaccine technology, for example, from patent protection,” says Wilder. But the last 30 years has seen an evolution in how IP is treated. “I would never say never,” he concludes.
