Analysing the Facets of Patent Pools

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Patent Pools: An overview

Today, innovation is what drives the world. In a world that is brimming with innovation to make life increasingly comfortable for mankind, several companies may develop technologies that are similar to each other. Consequently, it would become impossible for one company to develop a particular technology without infringing upon another company’s technology. Therefore, this led to the origination of patent pools. In a broad sense, patent pools can be defined as an agreement between multiple patent holders wherein their patents are aggregated for the purpose of cross-licensing. Patent pools are greatly advantageous. For one, patent pools reduce the chances of competitors preventing each other from accessing technologies or taking legal actions against each other on the pretext of patent infringement. Additionally, this also encourages innovation among licensees. Secondly, patent pools promote cost efficiency by reducing the expenses linked to obtaining the patent by minimizing any litigation costs that the parties may incur. Moreover, the need for negotiation with patent holders is also eliminated to a great extent due to patent pools. In sum, it can be said that patent pools are a greatly advantageous, cost-effective method for fostering innovation. It acts as a system for patent licensees to obtain all the patents required for using a particular type of technology from a single platform.

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On the flipside, patent pools have certain disadvantages associated with them as well. Patent pools may work ineffectively if there are regulation issues among the members of the pool. For instance, if members of the patent pool collectively disagree when it comes to governance issues or if prominent patent owners do not join the pool, the patent pool may be greatly unavailing. Patent pools also pose various issues related to antitrust law. Issues related to antitrust law arises when competitors are patent holders of overlapping patent rights. Consequently, neither of the competitors will end up developing the technology related to the patents they own without infringing each other’s patents. Primarily, there are two types of patent pools. An open patent pool may be defined as a patent pool that is largely controlled by management companies. These companies may control the patent pool by adding patent owners who meet certain criteria from time to time. The management company also coordinates among the patent owners and looks into licensing operations that occur within the patent pool. On the other hand, a closed patent pool may be defined as a patent pool wherein a patent administrator is selected. The patent administrator here regulates the pool, procures licensees, and ensures that the patent pool is conducted in a lawful manner.

Prominent examples of patent pools over time

The first patent pool can be traced back to as early as the 1850s. In 1856, four prominent sewing machine companies (Grover and Baker, I.M Singer and Co., Wheeler, and Wilson) and Elias Howe relentlessly kept suing each other due to overlapping properties that were found in the sewing machines manufactured by them. To break this cycle of relentless suing, Orlando B Porter, a prominent lawyer, suggested that the four companies and Mr. Howe could collectively aggregate their Intellectual Property into a trust. This way, all the companies could cross-license their IPs and manufacture the sewing machines without the risk of being sued. Furthermore, in 1917, two prominent airplane manufacturers (who also owned the patents related to airplanes)-Wright Company and the Curtiss Company, formed a patent pool upon suggestions from the US Federal Government due to the fact that multiple patent suits filed by both the parties were impeding the manufacturing of airplanes.

In the biotechnology and biomedical field, the origination of patent pools can be traced back to the early 2000s. In December 2000, the USPTO encouraged the establishment of a patent pool to combat issues related to biotechnology patents. This was done with the intent to boost pharmaceutical research. Through the patent pool proposed by the USPTO, genomic sequences and patents related to it would be available in the public domain. The USPTO contended that the patent pool would “provide for greater innovation, parallel research and development, removal of patent bottlenecks, and faster product development.”In the year 2002-2005, there were discussions initiated to establish a patent pool due to the SARS outbreak. During the outbreak, several corporates and individuals had filed patent applications on the ‘genomic sequence’ of the virus that was responsible for the outbreak. It was contended by the WHO that the established patent pool would issue licenses to licensees on a non-exclusive basis that would facilitate the process of creating a potential vaccine to combat the outbreak. Moreover, it was also scrutinized that several ‘analogous pools’ could be established for various other diseases such as tuberculosis, avian influenza, or malaria in order to further boost research and product development.

Patent pools amidst the COVID 19 pandemic

One of the prominent organizations that have been actively involved in removing any IP-related barriers amidst the COVID 19 pandemic is the Medicine Patent Pool (MPP). The MPP has been collecting information related to medical patents for COVID-related products such as tocilizumab and Remdesivir. On the 3rd of April, 2020, MPP stated that “The Board of the Medicines Patent Pool (MPP) has decided to temporarily expand its mandate to include any health technology that could contribute to the global response to COVID-19 and where licensing could facilitate innovation and access. With the support of Unitaid, this will allow MPP to offer its IP and licensing expertise to the World Health Organization (WHO) to assist the global effort in any way it can".Currently, information related to Remdesivir, tocilizumab, and several other medicines that are used to battle COVID 19 can be accessed on MedsPaL, MPP’s online database. The MedsPaL database is anticipated to be greatly beneficial for low-income and middle-income countries.  Additionally, MPP has also created VaxPaL which is an online patents database specifically for COVID 19 vaccines. VaxPaL was created by MPP to provide ‘transparency’ with respect to COVID 19 vaccine patents. Another notable initiative was taken by the WHO includes the COVID 19 Technology Access Pool (C-TAP). WHO suggests that C-TAP is a “one-stop” platform for corporates and individuals who are engaged in the development of COVID-related health products. C-TAP would help such developers share their IP and data with manufacturers and pharmaceutical conglomerates through non-exclusive and voluntary licenses.

As noted above, patent pools can be greatly beneficial for facilitating innovation in various industries. It can be concluded that the benefits of a patent pool outweigh the disadvantages it comes with. In today’s age, when innovation is of utmost importance, patent pools can most definitely open the doors to accelerating innovation, research and development.

Author: Sanjana, a BBA LLB student of  Symbiosis Law School (Hyderabad), in case of any queries please contact/write back to Global Patent Filing at in case of any queries please contact/write back us at support@globalpatentfiling.com.

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