Patents
How to Safeguard AI Technology: Patents versus Trade Secrets
The article above describes a common difficulty of intellectual property (IP) claims for artificial intelligence (AI): patent claims for AI are often deemed to be no more than abstract ideas. The United States Patent and Trademark Office (USPTO) has established a number of specific categories of AI in order to distil its definition, but the overarching theme amongst these categories is that, if a human mind can accomplish a particular task, it is likely an abstract idea. Of course, AI is, by its nature, an attempt to replicate the human mind, albeit in perhaps a stylized or exaggerated fashion; thus, the difficulty of patenting this technology is readily apparent.
In addition to with patents, legal battles also remain with regard to trade secrets. Rather than engage in litigation to prove infringement, a company seeking to protect a trade secret must instead demonstrate that the secret was misappropriated and that it took reasonable measures to maintain confidentiality. The distinction between patents and trade secrets remains very important for companies: trade secret law undoubtedly offers protection where patents do not, and vice versa.
Policy discussions and actions related to the COVID-19 pandemic
Below we’ve provided a round-up of recent developments related to the COVID-19 pandemic. Policymakers are working to identify and execute the best policies for pandemic preparedness and healthcare delivery, against a difficult backdrop. Innovators and other actors must step forward to provide their insights and experiences on the ground, whether in relation to IP, trade, regulatory or other types of policies.
African Union backs call to waive IP rights on COVID-19 drugs
The African Union is backing calls for drugmakers to waive some intellectual property rights on COVID-19 medicines and vaccines to speed up their rollout to poor countries.
Senator calls on Biden to reject COVID IP waiver
Thom Tillis, ranking member of the senate IP subcommittee, has urged US president Joe Biden to oppose ‘harmful’ proposals to waive rights related to COVID-19 vaccines currently in discussions at the World Trade Organisation (WTO).
U.S. Chamber opposes WTO waiver of vaccine intellectual property rights
The U.S. Chamber of Commerce said it opposed calls for the World Trade Organization to back a temporary waiver of intellectual property rights to speed coronavirus vaccine production in poor countries, calling them “misguided”.
U.S. Extends Tariff Exclusion on China Virus Supplies 6 Months
The U.S. is extending exclusions on tariffs for face masks, cleaning supplies and other personal protective equipment from China for six months, providing protection against higher costs as the nation fights the Covid-19 pandemic.
The move affects 99 different products, according to a draft of the notice by the U.S. Trade Representative seen by Bloomberg News. The exclusions, extended in December, will now run through the end of September 2021.
UNCTAD Paper Examines Linkages Between Non-Tariff Measures and SDGs
According to this paper, of all the NTMs adopted in response to the pandemic, almost 60 per cent were put in place to ensure adequate and affordable domestic supplies of medical goods and other essential items to combat the virus.
To minimize potential adverse impacts on trade and sustainability, the paper recommends policymakers first consider whether an NTM is needed or whether there are alternatives, then design high-quality NTMs where they are needed and implement them strategically with full transparency to inform other countries and the private sector of the measure.
EU-UK Trade and Cooperation Agreement: Implications for Life Sciences Companies
The widely anticipated EU-UK Trade and Cooperation Agreement (the Agreement) came into effect on 1 January 2021 after several difficult months of negotiations. The Agreement aims to ease trade barriers resulting from the UK leaving the EU and includes positive developments for life sciences companies. However, according to this article, the Agreement does not address all of the concerns raised by the life sciences industry, and significant gaps and areas for further discussion remain between the EU and the UK as the Agreement is implemented. This Client Alert from 03 March 2021 sets out key aspects of the Agreement for life sciences companies.
Why benchmarking is essential to patent strategy
According to a study by Cipher conducted in association with IAM, 98% of patent owners rely on benchmarking to support their patent strategy. However, over half of respondents are unhappy about the time and expense involved, with a similar proportion lamenting a lack of objective and reliable data.
The survey results are a timely reminder of the critical need for well-organised and reliable data to support patent strategy. The strategic importance of patents is being increasingly communicated to audiences who are neither seasoned nor interested in their technicalities. What they require is clear evidence related to the decision at hand. The solution is to automate the manual processes preventing access to this data.
Why the differences in valuing patents and trade secrets matter
It is important, for a startup to understand how patents and trade secrets can be valued as assets, the positive and negative factors that go into valuing both, and how potential investors really view these assets.
Trade secrets may not have the same cache as patents to a startup because they do not come with a ribbon-affixed certificate, are not subjected to any examination process, and are often harder to define. But trade secrets can be just as valuable — and in some instances more valuable — than patents. This article explains the values of both patents and trade secrets to help align the IP strategy with the overall business model.
IP Matters in Europe
The key findings from the joint study by the European Union Intellectual Property Office and the European Patent Office are presented in this Innovation Council infographic. The six figures show at a glance why IP matters, underlining the important contribution of IPR-intensive industries to the prosperity and competitiveness of Europe. The full study is definitely worth a read: it provides a detailed and wide-ranging analysis of how industries that make intensive use of intellectual property rights (IPR) contribute to EU economies. It updates and extends the findings of a previous study released in 2016. The original study can be found here.
Considering All Sides of Medicines Patents
For many years, policy experts and others have engaged in wide-ranging debates about patents on pharmaceuticals, particularly in developing countries. On the one hand, it has been argued that IP protection provides crucial incentives to the pharmaceutical industry to undertake more research on tropical diseases. On the other hand, the patenting of pharmaceuticals has been criticised as causing challenges regarding access to medicines. The brief examines in detail the rationale for patenting medicines. The examination includes an investigation into the role of the patent system in relation to the pharmaceutical industry, the moral limits of patents, how the exclusion of a patent can create social costs, the rationale for the patenting of medicines and the incentive theory and how this can be balanced with access to medicines.
Patenting and Covid-19 Vaccines
Patents have had an important role in organising the collaborations that led to the development and commercialization of COVID-19 vaccines. Patenting is a crucial tool in research-based industries like pharmaceuticals and biologics and can be a means to encourage collaboration. Terms can be negotiated to have different types of expertise combined in one project. The virus will likely garner another sort of PIP-type or any other similar program which will encourage contractual licensing of innovative IP in exchange for access to specialized expertise or important biological data. Monopolisation should clearly be avoided, and patent pooling must be the way forward to obtain sufficient vaccines for Covid-19 as early as possible.
Why intellectual property rights are a key, not a curse, for COVID-19 vaccines
The whole world is waiting for the distribution of vaccines against COVID-19 and should be distributed to all adults globally over the next 18 months. Calls are getting louder that intellectual property rights (IPR) should be suspended to allow unfettered vaccine manufacture will mean faster access for developing countries. The head of the World Health Organization, Tedros Adhanom Ghebreyesus, gave tacit support this week, warning of a “catastrophic moral failure” caused by unequal access to COVID vaccines. However, IP has played a vital role in every step of vaccine research, manufacturing and distribution. The Pfizer/BioNtech partnership behind the first vaccine to be authorised in the US would not have taken place without strong IP rights.
In a competitive market, no single company will monopolise COVID vaccines or succeed in “profiteering”. A zero IP world would be a backward step and discourage companies from making urgently needed refinements to existing vaccines to combat new COVID-19 variants.
Why intellectual property rights matter for COVID-19
Ending the COVID-19 pandemic requires innovation. IP is part of the solution and drives competition. IP licensing allows the innovator to control which partners manufacture the product, ensuring high quality supplies, and to maximise low-cost access for low and middle-income countries. Philip Stevens and Mark Schultz show that the reality is different from what calls for the suspension of IPRs suggest in order to keep prices low and address supply shortages. A highly competitive market in COVID-19 vaccines is unfolding right now. There is no evidence that abolishing IPRs will achieve anything more than the licensing agreements currently in place between innovators and big-name vaccine manufacturers in countries like India and Brazil; and the emergence of procurement mechanisms like COVAX. The authors demonstrate how the IP system has put us in a position to end the pandemic and why we should allow it to continue doing its job.