News and Commentary
In the Huffington Post, Daniel Maranas writes about the European Union’s alternative “waiver” text in its negotiations over the TRIPS waiver. In it, he outlines the proposal (which you can read here) which mainly reiterates the conditions under which member states may use compulsory licensing powers, which are valuable but no substitute for the robust liberalizations made possible by the waiver initially proposed by India and South Africa. He also quotes I-MAK’s Tahir Amin. Amin says, “The EU’s counter-proposal is a delaying tactic that is not designed to solve the problem but to obstruct any workable resolution.”
Sharon Lerner of The Intercept has an article discussion the origins of Merck’s drug molnupiravir, which shows significant promise in the treatment of COVID-19. However, while the marginal cost of a five-day course costs under $20 to make, Merck is selling the drug to the UK at over $700 per course. Though such pricing practices are not unfamiliar to patented drugs, Luis Gil Abinader of Knowledge Ecology International did research finding a significant investment by the federal government in the development of the drug, raising questions about the ability of the U.S. to issue a compulsory license under the Bayh-Dole Act’s march-in rights.
Also discussing molnupiravir’s expense and scarcity is James Patton in Bloomberg. The drug’s price makes it out of reach for many countries while larger, wealthier states like the U.S., Australia, and Singapore are buying up already available stock. There is some good news, however, as Patton reports that Merck has already licensed the drug to a number of Indian drug manufacturers to increase production. Jamie Love of KEI has a discussion of the countries included in the license for generic manufacturers, but is quick to point out that it’s unclear what the rules on exporting the drug will be for countries included in the licenses.
Dennis Crouch in PatentlyO discusses a recent decision by the CAFC in Mobility WorkX v. Unified Patents finding that Mobility’s complaints about PTAB judges having an improper financial interest due to receiving favorable performance reviews and bonus money when instituting more IPRs. The problem with this argument is that the IPR has to be instituted before an APJ can review it, and that there are no PTO rules which create the perverse incentives alleged.
Timothy Geigner of Techdirt highlights another example of the DMCA takedown process being used to silence speech, this time against a YouTube criticizing an online prank channel for, among other things, ignoring COVID safety precautions. The video critical of “NELK” posted by the YouTube channel “Tripping” has received several flags for copyright infringement, despite being a clear example of criticism.
In a chapter for Handbook of Intellectual Property Research: Lenses, Methods, and Perspectives, Graeme W. Austin writes about the role of the internet, global trade, and globalization more broadly in determining the scope of infringing activity and how a more international approach should be developed to handle the territorial nature of intellectual property laws.