The medical industry is one of the largest markets of our time, and is arguably one of the most beneficial to our society. The global healthcare market is expected to reach just shy of a $12 trillion by 2022. Intellectual Property (IP) law plays an essential role in protecting and encouraging medical devices and pharmaceuticals in the healthcare market. The global vaccine industry alone is expected to produce almost $60 billion in revenue, and these predictions were before the outbreak of the Novel Coronavirus (COVID-19).

What Are Patents?

One of the most common IP tools used to protect an invention is a patent.  A patent is a legally enforceable right for a substance, device, and method or process of manufacturing. The main criteria for a patent is that the invention must be new, useful, and inventive or innovative. There are two types of patent in Australia:

1.     Standard patents which require an inventive step and typically last up to 20 years; and

2.    Innovation patents which require an innovative step and last up to 8 years.

Having a patent gives the owner exclusive rights to commercialise their invention, effectively granting them a monopoly. For businesses whose competitive advantage rests on having unique products and services, having these patents will ensure competitors can’t copy these processes without their permission.

Will There Be a Patent for the COVID-19 Vaccine?

Given our current situation, if a pharmaceutical company were to develop a cure or vaccine to COVID-19 in the coming months, having a patent over that substance would be a great commercial boon to that company. But would the company patent the coronavirus vaccine at this time of crisis?

History has shown that at times of crisis inventors have forgone their rights to a patent. A relevant example of this is the creator of the polio vaccine, Jonas Salk. Polio was one of the most feared diseases of the 20th century, paralysing or killing thousands of children each year. Shortly after the vaccine was declared safe and effective, Salk decided not to patent the vaccine and allow everyone to freely access the formula. It is estimated that if he patented the vaccine, he would have profited by approximately $7 billion.

However, there is a strong argument to suggest that a patent for the COVID-19 vaccine will be filed, but that it may still be provided to all. For example, Elon Musk, industrial engineer and philanthropist announced that Tesla’s patents would become ‘open-source’ and available for anyone to use in good faith. Musk cited his desire to promote the development and creation of electric cars to help address the carbon crisis as the reason for the move. While Tesla still continue to patent their inventions to protect their IP rights and promote innovation, they have irrevocably pledged not to initiate lawsuits against anyone using their patents in relation to electric vehicles as long as they are acting in good faith.

In light of such a pandemic the likes of which many of us have not experienced in our lifetimes, it wouldn’t come as a shock if the inventor of a COVID-19 vaccine filed for patent protection, but essentially granted a free license to the world for their formula.