The South Centre organized an exchange dialogue session between patent offices from developing countries to discuss their role and practices in intellectual property and public health, which took place on 24-25 November 2021, virtually. This South-South cooperation initiative has the aim of intensifying collaborations between patent offices in the global South, especially in the use of TRIPS flexibilities for public health. The session had the presence of the patent offices of Angola, Argentina, Bolivia, Brazil, Cuba, Egypt, Malaysia, Peru and South Africa.
The session was opened by Prof. Ken Shadlen, from the London School of Economics, on contemporary trends related to pharmaceutical patents, with a focus on measures to curb secondary patents in a few selected developing countries. The exchange dialogue continued with presentations by Dr. Srividya Ravi and Dr. Kausalya Santhanam, who presented patent landscape analyses of Covid-19 related patent applications, particularly for treatments and vaccines.
Subsequently, based on data gathered from participant patent offices, an overview of the offices’ use of databases, quality of ICT systems and infrastructure was presented. While there is strong variation in this respect between patent offices, some common problems were identified – notably difficulties related to infrastructure and the use of technology tools and access to databases. This is an important aspect in implementing patent policies, especially in resource-scarce developing countries.
A discussion on opposition and administrative appeal systems ensued. IP offices shared their experiences at the national level: some contain formal opposition systems, while others may receive third-party interventions which challenge a patent application. In some countries, it is relatively common for courts to scrutinize patent applications, especially in those cases involving high commercial interests, while in others such role is less prominent. The variation in the situation of different patent offices underscores that while different institutional models exist, the possibility for third parties to challenge patent applications is an important tool towards ensuring robust patentability criteria analyses.
The second day of the exchange dialogue focused on patentability guidelines on pharmaceuticals and on biologicals. It started with a presentation by Dr. Carlos Correa, Executive Director of the South Centre, on the role of patent offices in applying pro-competitive patentability criteria which are rigorous and avoid the grant of patents on minor/frivolous developments, with a number of concrete examples.
This was followed by a discussion on the participant patent offices’ respective practices and, when applicable, on the guidelines for the examination of pharmaceutical patent applications, including for Markush claims and secondary patents, such as on salts, formulations, second medical uses and polymorphs. There is also variation between patent offices on these matters: while some have formal guidelines enacted, others adopt handbooks or internal practices, but all agreed on the relevance of ensuring more legal certainty and clarity with the existence of such guidelines. The importance of robust patentability criteria for public health was also further highlighted.
Finally, a discussion on specific guidelines for biologicals, including vaccines, concluded the dialogue. Some patent offices already have such guidelines and practices. All offices need to face new technological developments which require ever-growing attention in this field.
During the final session, offices shared some of the specific challenges they face and discussed possibilities for fostering collaborations. The South Centre will continue to promote engagements between patent offices as part of its activities on IP and public health. Sanitary conditions permitting, educational visits between IP offices are envisioned in the future. For more information, including specific requests for no cost technical assistance and to participate in such activities, please refer to our dedicated website: https://ipaccessmeds.southcentre.int/
Author: Vitor Ido is Programme Officer of the Health, Intellectual Property and Biodiversity Programme (HIPB) of the South Centre.