COVID-19 Pandemic: IP Issues & Challenges

By P. Kandiah

While the COVID-19 pandemic enrages the world, there are frantic efforts to produce effective and safe vaccines, to invent covid detection methods and kits, and to find cures for the potentially fatal sickness around the world.

Which companies are profiting from the emergence and spread of the coronavirus pandemic? Who are the inventors doing research related to coronavirus pathogens and who are involved in inventing diagnostic methods and/or inventing diagnostic kits inventions? Once granted, patent rights give exclusive commercialisation rights to the patent holder in the country in which the patent is granted for a period of about 15 years from date of grant of the patent.

A) Owners of patentable inventions will file their patent applications in countries where they anticipate significant commercial market for their diagnostic methods and diagnostic kits. The World Intellectual Property Organization (WIPO) publishes data on patent applications filed globally from which database the below statistics are extracted.

The US Patent and Trademark Office (USPTO) is the leading patent office in the world to receive the largest number of patent applications related to COVID-19 and other microbiological processes and diagnostic method and diagnostic kits. WIPO itself received 6781 applications under the PCT system of filing international patent applications (See Table 1).

Table 1: IP Offices and the no. of patent applications received relating to COVID-19 or coronavirus as at 12 April 2021*

Most owners of patentable inventions will file patent applications in the US as it is seen as a potentially large market for the inventions. Further, US Patent laws allow the patenting of methods of diagnosis of a sickness in a human body caused by a pathogen, or methods of treatment of the human body which may be a reason for the large number of applications in the US unlike other countries (including Malaysia), which do not grant patents for methods of diagnosis or treatment of the human body. However, diagnostic kits or drugs used to treat a sickness or diagnose a medical condition are patent eligible in all the countries.

B) Next, who are the major patent applicants for inventions related to the coronavirus or related to other virus-caused diseases? Here, Novartis AG of Switzerland leads the pack with 609 patent applications (See Table 2).

Table 2: Name of applicants and the no. of patent applications filed*

What is surprising is that other commonly heard producers of vaccines such as Pfizer-BioNTech, Moderna, Johnson & Johnson and Sinovac do not appear in the list. It may be that these companies may have sufficient but critically important patents to give them exclusivity to their invention and/or they may have patent and/or technology know-how agreements with other technology owners to commercially exploit the patents or know-how.

C.) Subsequently we turn to inventors named in the patent documents either as inventors or as co-inventors. Who are the significant inventors in this field as identified in the patent documents (See Table 3)?

Table 3: Name of the inventors or co-inventors named in the patent documents along with the no. of patent documents*

While there may be hundreds of researchers or inventors in this field, only the above-named persons are named as inventors or as co-inventors in different patent applications displaying the individual’s scope of expertise in coronavirus-related or other closely related technology on microbiological processes such as (a) Test kit for detecting nucleic acid of respiratory tract pathogens, detecting method and applications; (b) Methods of treating cytokine storm infections, including COVID-19, by inhibiting CCR5/CCL5 (RANTES) interaction, and compositions for practicing the same; (c) Recombinant novel coronavirus COVID-19 S protein, preparation method thereof and application of recombinant novel coronavirus COVID-19 S Protein; (d) Fermentation composition assisting in preventing COVID-19 and preparation method thereof; and (e) Novel coronavirus (COVID-19) antigen detection kit and detection method thereof.

Malaysia had experience in identifying the novel Nipah virus and developing methods of detecting sickness caused by the virus and inventing detection kits for the pathogens. Yet that experience appears to have not been exploited in developing methods or inventing detection kits for the coronavirus pathogens. Could it be that the applicants identified in Table 2 used their earlier experience in dealing with SARS, ZIKA and MERS pathogens in inventing vaccines related to COVID-19 pathogens?

Universiti Sains Malaysia did successfully develop a rapid diagnostic kit to detect typhoid fever using antigen technology. Could that expertise have been used to detect COVID-19 pathogens and thereafter develop detection kits?

*Source: World Intellectual Property Organization’s Patentscope Database

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