It is a truism that today’s world is vastly different from the one in which patent systems were first introduced in the 15th century. The coronavirus has brought these differences and their significance to the fore. The result has been some fresh thinking around how to support much needed research and development in the medical field. Unlikely collaborations between rival pharmaceutical companies have emerged, and ambitious public and private partnerships have been launched. Patent pools have been proposed to facilitate ‘timely, equitable and affordable access’ to patents, and research platforms have emerged to support open science. Public discussion of the policy implications of commercializing essential medicines has taken place, and the cost of producing treatments has been studied, alongside the prices charged for accessing them. At the same time, increased public scrutiny of the patent system has prompted warnings that rolling back its protections would threaten resource-intensive R&D programmes. While these developments have taken place, wider calls have also continued for a new 'social contract', and a more responsible form of capitalism.
If there were ever a good moment to reassess the patent system, this would seem to be it.
Against this backdrop, a forthcoming Opinion by Justine Pila for the European Intellectual Property Review – “Reflections on a Post-Pandemic European Patent System” – proposes three ways to improve the European patent system without legislative reform. Each has particular implications for drug patenting, and reflects an interpretive conception of law and legal legitimacy as requiring the application of legislation in accordance with moral values, including those expressed in constitutional instruments. If adopted the proposals would: restrict the patentability of second medical indications and anchor assessments of inventive step more firmly to patent policy; expand assessments of the moral and public policy implications of patenting inventions and extend the disclosure duties of applicants; and adapt the FRAND licensing system to cover essential medical technologies.