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IP Law and the Fight Against COVID-19

Professor James Cooper

As the world battles against the COVID-19 pandemic, one unlikely weapon is available right now to fight this scourge—intellectual property (IP).

IP—patent, copyright, trademark, and industrial design—is the foundation for a thriving consumer society. It is also a significant driver for economic growth, write California Western’s Professor James Cooper and Dr. Bashar Malkawi in a recent op-ed published in The Hill.

Importantly for right now, they write, IP is the engine to help the world out of the coronavirus pandemic. To effectively do that, governments around the world need to intervene to lessen IP restrictions in the short term and control spiraling prices.

In Italy, doctors have been 3D-printing replacement parts for CPAP hoods at a fraction of the cost normally charged by the patent holder, although this violates the patent on the machines.

Medicines need to be replicated en masse to fight the pandemic. Data exclusivity among researchers is slowing down the development of vaccines to ward off COVID-19. We need to relax IP rules to allow companies—small, medium, and large, domestic and foreign—to contribute to these efforts.

Now is not the time to prosecute these patent infringements, write Cooper and Malkawi. Governments should be acquiring the rights to critical medical products and services to fight the coronavirus. We can divide up the spoils later.

Concerning much-needed medicine, compulsory licensing should be considered, they write. Compulsory licensing can be used for COVID-19 tests and drugs to treat the disease. Issuing a compulsory license for drugs can fall under emergency circumstances exceptions in national laws. The use of such licenses prevents patent holders from using their rights in a manner that might restrict trade.

Another area for quick action is data exclusivity. It is time for pharmaceutical companies, scientists, and medical associations to share data and transfer technology to treat COVID-19.

Finally, write the authors, there is a need for price control measures, at the same time recognizing that corporations and the scientists who work for them are economic actors who want and deserve to be compensated for their efforts.

Price controls on drugs could include a government cap on drug prices deemed excessive or subsidies that reimburse patients who pay upfront. Price controls would address broader health policy considerations such as access and affordability.

It is a global emergency, conclude Cooper and Malkawi. Millions of people are infected with COVID-19 and require treatment, and hundreds of millions more need to be tested.

As we work to find ways to protect humanity from this horrid pandemic, the niceties of IP law should not get in the way of our fighting it.

Read James Cooper and Bashar Malkawi’s complete op-ed here.