Global Patent Strategy over Vaccine Nationalism


Emerging Vaccine Nationalism

‘Vaccine nationalism’ could slow the search for a cure for Covid19. [1] The nationalism that prevails in the fight for a Covid19 vaccine is not only overshadowed by the geopolitical tensions between the United States and China, but also by individual nations seeking to find a cure on their own. In the UK the government bets on a collaboration between Oxford University and the British Pharmaceutical Company Astra Zeneca.  Germany backs BioNTech, China focuses on Fosun Pharma and the US support Pfizer. In this race, nations also cautiously prevent take overs of firms in their countries by firms in other countries.

While I remain fairly indifferent when nations compete against each other to conquer space, I doubt that nationalism is the best innovation strategy to find a cure for Covid19.  That the first man on the moon was American and not Chinese or Russian had no larger impact on humanity. In this global crisis situation however, working in silos and without adequate international linkages is simply not the best strategy to find a cure for Covid19.  

[1] Why vaccine ‘nationalism could slow coronavirus fight.’

Global Patent Strategy

In an Open Innovation eco system patents can become instruments of exchange and allow for the creation of pools, aggregators and larger knowledge clusters. They can also give way to cross licences and tech transfer arrangements.

While patent aggregators and pools have proven to be successful in the telecommunications sector, they can also be instrumental in bringing new technologies to market faster. The underlying cluster approach helps to aggregate otherwise disperse IP and, in this way, allows to bridge scattered knowledge islands created by research silos A good example of such an approach are the pharmaceutical research clusters between Oxford, Cambridge and big Pharmaceutical companies. Such pharmaceutical clusters can look back at a track record of success. Clusters like these need to be expanded, nurtured and further developed.

The Need to Establish Patent Clusters

The Comparable Licenses approach is easily understood. It seeks to establish a valuation by reference to other licensing transactions. As such, it allows to model real world licensing transactions.  Being rooted in historical transactions, it offers insights into licensing contracts that have actually been concluded.

Important to note is that, just because a licensing transaction has occurred, it does not necessarily mean that the transaction was commensurate with the FRAND commitment. As with the Top-Down approach, the Comparable Licenses approach can be used as a sole or secondary method and, as well, serve as a cross-check or a sensitivity analysis.

It should be clear that key to the successful usage of this method is the identification of comparable licensing rates. Here, Europe is at a disadvantage. Whereas the United States and Canadian Financial Authorities have fairly strict disclosure requirements in place, GDPR provisions prevailing in Europe may actually prevent the adequate access to comparable licensing rates.

In the USA and Canada, licensing transactions of significant size must be publicly disclosed. No such regulation exists in Europe. To the contrary, data privacy requirements under European GDPR requirements actually do the exact opposite and prevent adequate access to licensing contracts. Accordingly, this method may be more easily used in a North American context.

Take Away

While approaching patents under an Open Innovation paradigm can speed up the search for a cure, patent nationalism risks having the opposite effect. Unfortunately, patents lend themselves well to nationalism.  Patents are territorially limited rights in an invention that can only take up international character with the support of WIPO’s Patent Cooperation Treaty. As such, they are not intrinsically structured to promote borderless innovation strategies. However, the adequate management of IP relies not on the technical features of the patent tool itself, but on a smart patent strategy.  As such, weary patent managers should explore how to cluster, group and aggregate patents in the spirit of Open Innovation. This promises higher chances of innovation success than research nationalism.

Dr Roya Ghafele is the Managing Director of Oxfirst Ltd, a law and economics consultancy She has held Lectureships (Assistant Prof. in the US Academy) in international IP law and international political economy with Oxford and Edinburgh University and served as an economist to the United Nation’s World Intellectual Property Organization, the OECD and McKinsey.