Strong IP Protection A Priority For Current, Ex-USPTO Heads

By Britain Eakin
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Law360 (April 26, 2021, 8:29 PM EDT) -- The acting director of the U.S. Patent and Trademark Office joined forces with former agency heads Monday to highlight the importance of intellectual property rights, with ex-leader Andrei Iancu warning that loosening those rights could hamper global efforts to tamp down COVID-19.

Iancu voiced concern about a World Trade Organization proposal to temporarily waive intellectual property rights to speed up global vaccine distribution. His remarks came during a webinar hosted by the Washington, D.C., chapter of the Licensing Executives Society to celebrate World Intellectual Property Day.

"We need to make sure that everyone else understands how IP helps, and it does not in any way harm the process. … I think folks need to understand that suspending IP rights actually will make the situation worse, not better," Iancu said.

The proposal from India and South Africa, which has the support of more than 100 other mostly developing countries but has so far been blocked by WTO power players including the U.S., the European Union and the U.K., would temporarily suspend the enforcement of global IP rules. That would include patents, copyrights and trade secrets.

Advocates of the proposal argue that doing so would unlock key vaccine formulas, boost global production and improve access. Critics say it will deter investors from making future investments in pharmaceuticals and undermine vaccine safety because the products are complex and difficult to make. 

Iancu said that people in the IP community are greatly concerned about the proposal for those reasons. While he said there is widespread agreement that fast, global and equitable distribution of the vaccines is paramount, rolling back IP rights will undermine the collaboration in the biopharmaceutical industry that allows COVID-19 vaccines to be made safely and quickly.

Intellectual property rights facilitate that collaboration because all involved companies trust that their intellectual property will be protected, Iancu said.

David Kappos, an Obama administration appointee who led the USPTO from 2009-2013, voiced the same concerns, saying awareness needs to be raised of data showing that "the intellectual property system has nothing to do with developing countries not having access to the COVID-19 vaccine."

"Indeed, we owe a great debt of thanks ... to the brilliant innovation of the mRNA platform, the companies that innovated it, and their efforts to make the vaccine available in record periods of time," Kappos said, referring to the technology used in the Pfizer and Moderna COVID-19 vaccines.

Access to the COVID-19 vaccines is governed by things like government corruption, the supply chain, refrigeration, confidence in medical systems and access to health care professionals, Kappos added.

"We need to honestly confront those challenges because they're big challenges. To honestly confront them is to honestly convey the understanding that none of this is an intellectual property problem," Kappos said.

Kappos tied concern about the WTO waiver to the theme of this year's World Intellectual Property Day — the import of the patent system to small- and medium-sized businesses that have a harder time accessing patent protection.

When the patent system experiences an untenable interruption — the kind that would result from waiving intellectual property rights during the pandemic — Kappos said it isn't the big companies that get hit hardest. It's the smaller entities and independent inventors who he said take the brunt and ultimately face more barriers to securing patent rights.

"Between a number of issues that are bearing in on our intellectual property system generally right now ... copyright, trade secrets — all of the areas of IP [are] very much under stress — but especially the patent system. I think we do need to recognize on World Intellectual Property Day that there are some significant problems," Kappos said.

While Iancu and Kappos struck a more dire tone during Monday's webinar, acting USPTO Director Drew Hirshfeld touted the agency's recent issuance of the 100th patent related to COVID-19 through the fast-track examination program. The program aimed to move patent applications related to products or processes that are subject to applicable U.S. Food and Drug Administration approval for use related to COVID-19 through examination in a year or less.

Hirshfeld also noted that USPTO will surpass 11 million patent grants next month.

--Additional reporting by Andrew Karpan and Kevin Stawicki. Editing by Michael Watanabe.

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