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05 May 2020
BY Rowan Forster

South Africa: COVID-19, technology and patents: the good, the bad and the ugly

There is no doubt that the Coronavirus (COVID-19) pandemic has had a profound effect on the world and it is perhaps unsurprising that the world of intellectual property has not marched on unaffected. There will be consequences for the way in which we and our colleagues in the IP profession work and deal with “our” business going forward, but in the meantime, our clients have their hands full. In another article, we look at trade mark issues surrounding COVID-19. In this article, we will look at some issues dealing with technology and patents.

THE GOOD

We’ve seen plenty of good:

Joint ventures

By way of example, we’ve seen the Chinese company, Fosun Pharma, enter into a USD135-million deal with the German company, BioNtech (Biopharmaceutical New Technologies), with a view to developing a COVID-19 vaccine. Fosun Pharma will pay some USD85-million in licensing fees to use BioNtech’s mRNA therapeutics, and it will also invest a sum of USD50-million in the company. This is simply one of a number of significant commercial transactions that have been triggered by COVID-19.

Emergency use authorisation

Under section 564 of the US Federal Food, Drug, and Cosmetic Act, the FDA Commissioner may, in times of an emergency, allow unapproved medical products or unapproved uses of approved medical products to be used in the diagnosis, treatment or prevention of serious or life-threatening diseases or conditions.

An example of an emergency use authorisation (“EUA”) was the FDA’s approval of Abbot’s molecular test for COVID-19. This relates to the Abbot m2000 Real Time System, a molecular solution featuring a broad menu of tests including one for infectious diseases. As a result of the EUA, Abbot was able to ship some 150 000 laboratory tests immediately.

FDA’s notification without an EUA pathway.

A further Abbot test is being made available as part of the FDA’s notification without an EUA pathway.

Whereas a molecular test detects if someone has a virus, an antibody test determines if someone was previously infected. Abbot’s third COVID-19 test, announced on 25 April 2020, is an antibody test. This laboratory-based blood test seeks to detect the antibody IgG, which identifies if someone has had COVID-19. The hope is that this may provide an understanding on how long antibodies stay in the system, and if they indeed provide immunity. Such knowledge could help with the development of treatments and vaccines. The company announced that it intended to distribute some 4-million tests in the USA during April 2020, and up to 20-million per month as from June 2020.

Patent filings

COVID-19 will certainly have an impact on patent filings in 2020, as companies seek to develop vaccines, test equipment and the like. But you may be surprised to hear that the first Coronavirus patent was issued in France in 1974 or that by 13 February 2020, some        9 200 Coronavirus patents had been issued by 24 different patent offices. This, of course, relates to the fact that COVID-19 is just one of many Coronaviruses, with SARS having been an earlier example.

Some 5% of these Coronavirus patents were in the field of nanotechnology, with many of them having been filed in the period 2017-2019. The big-name universities figure strongly here, and amongst the top filers are Harvard College, University of California, Massachusetts Institute of Technology and California Institute of Technology. Read more about these patents here.

THE BAD

It’s been well reported that COVID-19 has encouraged criminal behaviour. By way of example, the UK National Crime Agency (“NCA”) announced on 15 April 2020 that a pharmacist and a surveyor were arrested over the illegal sale of Coronavirus test kits. The pharmacist was arrested under the Fraud Act after making false and misleading claims about the tests’ capabilities. The surveyor, who was found to be in possession of 250 COVID-19 testing kits that he had apparently been planning to sell to construction workers, was also arrested under the Fraud Act for making false and misleading claims. The authorities also took down a website that sought to sell non-existent personal protective equipment (PPE) through phishing emails. A NCA spokesman said this: “COVID-19 is increasingly being used as a hook to commit fraud.”

THE UGLY

On 18 March 2020, The Register reported that a private equity company, Fortress Investment Group, that in 2018 bought patents relating to a testing machine from a testing company that had collapsed (because its tech didn’t work), was suing a company called Bio-Fire for patent infringement for using a medical testing machine that is being used to detect the presence of COVID-19. Fortress Investment Group is, in fact, a subsidiary of a company called Softbank, and there is apparently a history of buying patents with a view to suing for infringement rather than working the patents.

When the news of the case spread the patentee backtracked, claiming that it hadn’t known that the allegedly infringing machine was being used for COVID-19 tests. It promptly offered royalty-free licences to those involved in COVID-19 testing.

AND FINALLY, THE MAKES YOU PROUD TO BE SOUTH AFRICAN

On 14 April 2020 Business Insider reported that a robot called Quintin is doing virtual ward rounds in the intensive care section of Cape Town’s Tyberberg hospital. Quintin, who can be employed remotely from phone or laptop, has a microphone and a zoom function that allows doctor and patient to communicate with absolutely no risk of infection to the doctor.

Rowan Forster
Executive | IP
rforster@ENSafrica.com
+27 83 440 3170