Wuhan Virus Research Institute on February 4th said that on January 21st Ridsyway had applied for a patent, a move that led to many online allegations that many people, including researchers, thought of the patent grab. Wuhan Virus Institute, at the forefront of the wind, at this time to stand up for them, it is easy to be considered to wash the ground for them, but as a patent practice lawyer, it is necessary to stand up to the reader to popularize some knowledge of patent law.
Some hospitals in the face of the new coronavirus pneumonia no drug available, in accordance with the “sympathetic administration” rule screening drugs, in line with humanitarian principles, so-called compassionate administration simply is a patient in critical condition without medicine can be used, the introduction of a special institutional arrangements for the use of experimental drugs. However, sympathy for drug administration is a drug administration law issue, not an intellectual property issue, not discussed in this article. From the perspective of patent law, we have conducted a preliminary investigation and research, and believe that the patent application issued by Wuhan Virus Research Institute, neither in violation of the law nor in good faith, is entirely justified, resulting in some public misunderstandings mainly due to the lack of understanding of the relevant professional issues. The reasons are as follows:
First, The search of patent novelty in China is also a global standard, so Chinese institutions in the United States has announced the patent technology to seize, does not have the feasibility of patent law sense.
After checking the relevant original text, Wuhan Virus Institute said: “In the suppression of the 2019 new coronavirus (2019-nCoV) drug screening made important progress.” The study showed that on Vero E6 cells, Reedsivir (GS-5734) had an effective concentration of EC50-0.77 uM (micromole per liter) for half of the 2019-nCoV, with a choice of exponential SI greater than 129 The EC50 s 1.13 uM of chloroquine phosphate (Chloroquine) and sI greater than 88 indicate that the two drugs can effectively inhibit the infection of 2019-nCoV at the cellular level, and their effect on human body has yet to be clinically verified. “
The results of the study were “Remdesivir and andquine annol annol the new emergly ed novel coronavirus (2019-nCoV) in vitro” (rhei Ridsiewe and chloroquine phosphate can effectively suppress new coronaviruses (2019-nCoV) in vitro, published in Cell Research, an internationally renowned academic journal of China’s independent intellectual property rights. So, does this patent application constitute a rush?
China’s current patent law is the implementation of the global standard of patent novelty search, that is, as long as there is a patent application before the date of the disclosure of technical programs, can not meet the patent law requirements of novelty requirements, therefore, after the 2008 patent law amendment of this standard, if the patentee do a good job of confidentiality work does not disclose, There is no rare case of insider stakes, as long as the patentee applied, there is no possibility of grabbing another person’s patent in China.
According to public information, Gilead has applied for a patent for its drug Ridsewey, so in the future as long as the patent is granted, as long as the 12-month priority period through the PCT (patent cooperation treaty) or directly apply for a patent in China, then the patent in China is also basically stable. So the public need not worry that Ridsiewe’s patent rights will not be affected by the Wuhan virus application.
Patents and trademarks are different, the implementation of global standards basically eliminate the possibility of preemption.
Patented patented technologies that have been published, because new uses are patented, new inventions within the meaning of patent law, can be patented, which is neither illegal nor contrary to the ethical standards of good faith.
This aspect involves patents, clinical licensing of drugs and other very complex technical and legal issues, it is difficult to make it clear to the public through short text, so we simply cited a patent field known for the same kind of events, that is, the famous male strong yang drug Wan Aico (commonly known as “Viagra”) to explain.
The drug was originally invented as a treatment for heart disease drugs, and later by chance found that the drug has a very good effect on male impotence, then this (heart) existing drug for new areas (male erection), also belongs to the invention, can be patented. The latter patent does not affect the previous patent itself, and if this new use is discovered by an institution other than the original inventor, it cannot be said that the patent application of this newly discovered scientific research institution is contrary to good faith.
Wuhan virus application is similar to this situation, if it is finally confirmed that they first found, or they found a specific dose and other specific technical programs are effective, then Wuhan virus in its own invention and creation technology program patent is entirely justified.
Don’t look down on this kind of improved invention for some kind of original invention, sometimes the technological improvement in the commercial or in a certain sense of contribution, is not much less than the original invention. I cite unrelated similar cases, such as baby diapers, many manufacturers can produce, but some manufacturers of the quality is particularly good, you can open to see, perhaps the material is similar, why some people do a good job, others can not do it? This is because there are some technical details improved, some people after a long-term test to grasp, and most manufacturers may not have the former do well.
Do scientific research most of the time is very dull, lonely and hard, we because of the patent litigation work contact with some scientific research workers, many scientific research institutions, a large number of scientific research personnel for decades of continuous efforts, not necessarily to make any decent scientific research results. But the society is complex, all aspects must have someone to study, just as we can not get to this Wuhan new coronavirus outbreak, just think of the establishment of research institutes and organization of scientific research personnel to study these issues.
These days many online accusations against researchers, many are not investigated and studied, not based on the ability to see forwarded questioning information on the arbitrary assertion, even with only a cavity of blood on the abuse of attack, scientific researchers in response to the outbreak of blood and sweat at all costs, if we no longer think about learning, on the arbitrary comments, let them be wronged tears, how to bear?
Second, our aversion to the rush is due to the trademark domain name to bet rather than the patent, the probability of patent pre-emption success is very low, unless someone steals someone else’s technical achievements to apply.
Everyone hates the rush, generally refers to trademarks and domain names, because trademarks and patents, all intellectual property rights are limited by the jurisdiction. A trademark done well, there will be some other countries or regions of some speculators maliciously grab, in this regard, China does have a lot of bad bid for trademarks, domain names and other precedents (this is also the root cause of everyone hates the grab), in fact, many Chinese brands go out also suffered.
But no matter which field there are complex professional details, criticism needs to be clarified before the specificsituation. A trademark registered in one category does not allow other enterprises of the same or approximate category to register the same or similar trademarks. After a patent application, it may apply directly to or through the PCT for a patent from another country within the priority period. Pharmaceutical companies like Gilead have a very high level of patent law for patent workers and researchers, and the probability of major mistakes is low. You can see that multinational companies in China’s intellectual property litigation success rate has been as high as 90%, in recent years, with many Chinese enterprises own more and more intellectual property rights, so it is normal to start to appear multinational companies tort losses.
Do not know that we are concerned about no, Gilead in addition to issuing a statement that its drugs have not been approved by any country for clinical use, and did not like the netizens accused Wuhan virus so-called “patent grab” problem, this is why? Because its legal and intellectual property department personnel should be familiar with the relevant intellectual property rules, for the occurrence of new coronavirus pneumonia, it is certain that the world’s scientific institutions are actively in the screening of effective drugs in existing drugs, and for the subsequent patent applicationand and clinical applications to do related data, such as preparation, patent applications as long as they are made public, The world’s major national patent databases are retrievable, the purpose of the patent system itself is to use open-for-monopoly protection, so no patent applicant can object to the patent application after the disclosure of any one can continue to study and apply for a patent.
Third, patent law allows different patents to coexist and have a benefit-sharing and compensation mechanism, without worrying about the fairness of the interests of scientific researchers created in good faith.
Everyone hates the grab because the punter is hitchhiking, encroaching on the trademark owner’s hard-working business to obtain the goodwill, is not labor-free and obtained, illegal integrity and morality.
So, after the Redsey Wei patent application, Wuhan virus applied for a new patent, there may be other institutions based on Redwest patent application, these derivative patents if not illegal, whether there is a hitchhiking violation of the integrity of the moral flaws? The answer is no.
Because patents and trademarks are different, a trademark is a symbol of goodwill, the use of different trademarks to represent different sources of goods and services, the public is based on the trademark brand selection of goods to receive services, consumers directly vote with money; As for the amount of patented technology contained in the commodity, how the inventors of each patented technology to split the problem, should be the patent legal system and technology market to solve.
To put it simply, unless a compulsory state permit is initiated in exceptional circumstances, the use of a patent is subject to the patentee’s permission and payment, the patentee may go to court for potentially astronomically large compensation.
Therefore, for The Wuhan virus such as based on the core patent (basic patent) of others and applied for derivative patents, its subsequent use if fell into the scope of rights protection, is to obtain the patentee’s license and pay the fee.
Patent law protects the technical schemes written in the claim and are protected by law as long as it falls within the scope of the claim. Now some of the major pharmaceutical companies are basically patent-protected drugs, a patent drug sales of billions of dollars or even tens of billions of dollars is possible, so there is no need to worry, if the distribution of benefits is not satisfied, the relevant patent contributors will naturally use legal means to find a solution.
If The Wuhan virus does not apply for a patent, if the drug is proved to be effective, then we may now have a large number of use follow-up need to pay sky-high costs, so all Chinese scientific research institutions and personnel have an obligation to plan ahead, as far as possible to do some possible prevention, checks and balances of the patent layout, very necessary, This is not inconsistent with the current hospital treatment and rescue.
Fourth, patents and drug listing are different legal issues, Gilead issued a statement is to exclude their own moral and legal risks.
Gilead states that its patents have not yet been clinically licensed in any country because they are intellectual property law issues, and whether drugs can be produced and put into clinical use is a national drug administration legal issue, which is a related and completely different matter.
China’s drug management law and other laws and regulations for drug testing, production and marketing regulations have strict procedures, whether in accordance with China’s or the United States FDA requirements, violations of these drug-related requirements may cause serious medical consequences and serious legal liability, which is why Gilead company to publicly issue a warning and warning, In case of future consequences such as death caused by drug use, they can claim exemption accordingly.
Fifth, if because of the previous High Level of Gilead patent writing led to Wuhan virus can not obtain patents, this is the level of patent layout, not related to scientific research ethics, there is no blame.
We note that a peer-to-peer lawyer and patent agent has written an analysis that due to the high level of writing of patent application documents of Gilead, there may have been some layout, resulting in the Wuhan Virus Institute’s application will eventually be due to conflict with the prior patent can not be approved. As it involves very professional terminology and technical details, we do not intend to expand, but regardless of the success of the Wuhan Virus Institute application, this is a professional issue in the field of medicine and patent writing, worthy of our professional field of study and discussion. But these are not the same as hitchhiking other people’s big-name trademarks, not related to moral factors, in the case of the relevant issues are not clear, it is recommended that the public do not easily criticize the blame, lest researchers sweat and cry for the epidemic, spend valuable time to deal with the rebuttal. (Partner, lawyer, Intellectual Property Department, Shanghai Duan and Duan Law Firm)