Protection of industrial property rights and Coronavirus: critical issues and possible solutions
In the current moment of economic and health emergency, the question arose of assessing whether the exclusive rights conferred by patents could prevent or delay the discovery of a remedy for the Covid-19 pandemic. The Italian code of industrial property intervenes to help solve the problem, also by providing for a series of provisions aimed at balancing IP rights with the needs of the public health and security.
The Covid-19 emergency amounted to a stress test in multiple areas of the law. Some of them emerged immediately; this is the case, for example, of the interpretation and effects of the force majeure clause, of the coverage of insurance policies for pandemic events, as well as of the multiple labour issues related to smart working, layoffs and redundancy funds.
Then came the tension between privacy and data protection, on one side, and public health, on the other side, with a lively debate, at least in Italy, on the actual measures that employers can implement to protect the health and safety of the employees vis-à-vis the right of the latter not to share information on their physical conditions. The same tension now applies to the design of the apps and of the electronic platforms and devices useful to control the further spread of the disease once the lockdown is released or softened.
Against this background, traditional IP categories remained mostly untouched and apparently irrelevant: who cares about trademark protection when products remain on the shelves of closed shops? Why bothering about patent infringement when courts are mostly closed and proceedings are stayed? Even the news about the recent German Supreme Court decision on the UPC, that put (another) bar to the actual chances for the project to start, did not create much ado and generated some discussions only among aficionados.
Now that the Covid-19 pandemic hit most Countries and the attention is shifting from lockdown and social distancing measures to the actual means to fight the virus and possibly cure the disease, IP has become relevant again.
This has been confirmed in occasion of the importation of some CPAP devices and masks in Italy, which could have been interfering with some patent rights; immediately the public wondered if those rights can hinder or prevent the importation and sale of products perceived as life-saving and hence naturally candidate to be exempt from exclusive rights.
The same comments have been made in connection with tentative therapies or vaccines aimed to defeat the virus and immunize people, so that they can revert to normal life. Patents and exclusive rights were immediately considered as undue obstacle that may slow down the development, and, more important, the deployment of these remedies.
Fortunately these concerns are misdirected. IP laws, and patent laws in particular, are well equipped to deal with this kind of issues, providing sufficient maneuvering areas for the government and public authorities to balance the health and safety reasons with the need to remunerate research and innovation (the very source of the possible remedies to Coronavirus and similar diseases).
Such a balance is imbued in the foundation of IP system, as confirmed by the TRIPs agreement, which includes the need to protect the life and health of human beings among the grounds of possible limitation of patent rights (article 27), providing the blueprint for an enhanced exception to exclusive rights in case of national emergencies (article 31).
Italian IP code indeed includes a number of provisions aimed to conciliate patent rights with public and safety needs. First and most important, patents cannot prevent anyone from carrying out research activities (art. 68 IPC), even when the research involves the exploitation of patented inventions.
Second, a patent must be actually used in order to satisfy the Country’s needs; otherwise the patent is subject to a compulsory license and may even lapse for non-use (art. 70 IPC); compulsory license can be obtained also by the owner of a patent on a subsequent relevant invention whose exploitation is hindered by a previous patent (art. 71 IPC); such a provision is useful to prevent the owner of a patent on a certain substance to prohibit the use of said substance in an inventive manner for the cure of a new disease.
These provisions contribute to make patent rights “compatible by design” with research and technical progress, minimizing and even eliminating the risk that exclusive rights conferred by patents prevent, hinder or delay the discovery of a remedy to a pandemic like Covid-19.
Such a result is ruled out by a further set of provisions (articles 141-143 IPC; see also art. 194 IPC) granting to the State the right to expropriate patents and other IP rights (not including trademarks) for “military defense of the Country and for other public interests reasons”.
While there is not an established case law on this provision, it can be reasonably invoked against a patent (mis)used so that it prevents the manufacturing, sale or administering of a therapy against Covid-19 or a vaccine against Coronavirus.
IP law seems therefore to be well equipped both to support and foster the research (this is indeed the very purpose of intellectual property rights and patents in particular) aimed to find a remedy to the pandemic, as well as to play nicely if and when -let’s instead keep only when- the remedy will be found.