World IP Day 2021: Reflections During a Global Pandemic Year

“A reliable and robust IP environment has made it possible for innovators to invest resources in the development of vaccines and therapeutics. Without strong IP protection, will we be equipped to face the next global challenge?”

“[Y]ou were not made to live as brutes, but to follow virtue and knowledge” – Dante Alighieri

Column of Marcus Aurelius (© Arpingstone, Public domain, via Wikimedia Commons)

Never more than in this past year has reflection and introspection been important to cope with the isolation and stress brought by a raging pandemic. As I look back at World IP Day last year, I immediately recognize how much we have learned and evolved since the beginning of this aggressive and deadly disease.

In little more than a year, the outlook is significantly more positive: vaccines are being rolled out in vast quantities, their effect in curbing infections and deaths starts to be recognized, the economy is showing signs of recovery, schools are reopening and there is finally more optimism.

A few days ago we passed the milestone of the first billion COVID-19 vaccine doses administered globally. And it took just 143 days! Many have referred to the remarkable achievements in therapeutics and vaccines against COVID-19 in such a short time as a “miracle”. This is not a miracle, it is thanks to science. Or, rather, the scientists, the doctors, the nurses, the healthcare professionals and all the other angels who are working tirelessly to defeat COVID. Massive investments have been necessary to unlock the vision of a global community that has mobilized like never before. The partnership between the public sector and the private sector has proven incredibly successful. Governments and companies are cooperating in developing, manufacturing and distributing needed drugs. IP and licensing, with the incentives that they provide, are the big enablers of this “miracle”.

Last year, India and South Africa petitioned the World Trade Organization (WTO) to suspend provisions of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) and waive protection for COVID-19 therapies. The proposal is gaining attention and unexpected support, even within the United States. As the former Director of the U.S. Patent and Trademark Office (USPTO), Andrei Iancu, has pointed out in a recent article, there is no evidence that waiving IP rights will help boost vaccine supply and access. Quite the opposite: a reliable and robust IP environment has made it possible for innovators to invest resources in the development of vaccines and therapeutics. Without strong IP protection, will we be equipped to face the next global challenge?

The Roman emperor Marcus Aurelius, born on this date in 121 AD (incidentally, he shares a birthday with Giorgio Moroder, of whom I have already written here), wrote in his Meditations:

Often injustice lies in what you aren’t doing, not only in what you are doing.

A lot can and shall be done to protect innovation. In the United States, discussions are ongoing on subject matter eligibility under Section 101 of the U.S. Patent Act, Patent Trial and Appeal Board (PTAB) reform and leadership in standardization. While we look at the potential benefits and drawbacks of specific policies or initiatives, let us not forget the impact of lack of action. Strengthening IP requires commitment and initiative, especially at times when several countries are looking at IP as a means to strengthen their economic growth.

IP policy is also a matter of national security, where the lack of action can put us at risk. The final report of the National Security Commission on Artificial Intelligence (NSCAI) identifies some of the challenges the United States is facing in IP:

The United States must recognize IP policy as a national security priority critical for preserving America’s leadership in AI and emerging technologies. […] The United States lacks the comprehensive IP policies it needs for the AI era and is hindered by legal uncertainties in current U.S. patent eligibility and patentability doctrine. The U.S. government needs a plan to reform IP policies and regimes in ways that are designed to further national security priorities.

A paper by Professors Mark Lemley and Samantha Zyontz has shown how the uncertainty under Section 101 in the United States has mainly impacted smaller entities and individual inventors, who are the lifeblood of innovation and influence investment decisions. Seven years after the Supreme Court decision in Alice v. CLS Bank, and as the America Invents Act (AIA) turns 10 years old this year, a critical look at the effects on innovation through empirical evidence and data is warranted. Status quo may not be an option.

A strong IP environment is a cornerstone of our society. Detractors of IP should look at the hard data – for example, from Jonathan Barnett’s book – or at the vast empirical evidence that links IP with prosperity (see, for example, the International Property Right Index or the U.S. Chamber of Commerce IP Index), or at the “miraculous” development, in less than 12 months, of COVID-19 vaccines and other therapeutics. On this day, let us celebrate the visionaries and innovators who made this “miracle” possible, and make uncounted “miracles” happen every day.


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