By Franck Amiot
It is a well-known adage that patents are a driving force of innovation, in that they guarantee a return on the investment made in research and product development. This seems to be particularly applicable to the pharmaceutical field, where the development times of therapeutic products and their costs are said to be the highest. So much so that it is inconceivable to develop an active ingredient without patent protection and, conversely, if patent protection proves impossible, the investment remains limited or even non-existent. It is unfortunate that publicly available products are abandoned because they do not allow for a monopoly, suggesting that the absence of a patent would be a hindrance to innovation.
There is no doubt that patents and innovation are closely linked. The patent provides a legal framework for an invention to grow and reach its market. However, there are other mechanisms that contribute to the development of innovation, whether they are financial, fiscal or organisational, starting with start-ups, business incubators, various innovation support institutions, national and European grants and private investment groups. In the case of pharmaceuticals, the exclusivity of data, and the regulatory framework in general, also play a crucial role. Thus, innovation benefits from a complete infrastructure, to the extent that it may be difficult to determine the share of patents, compared to the benefits offered by the economic ecosystem, in the success of a project.
It is even very likely that the patent alone would not be sufficient to support the innovation and even less to initiate it, because it is above all an additional expense, incurred very early in the project and a priori prejudicial to the development of the project itself, and which produces its effects after a while, generally at the time of commercialisation. The patent then takes on its full meaning in the event of commercial success, for which it makes it possible to maximise income.
The patent therefore appears as a marker of innovation, with which it is almost systematically associated, rather than as one of its driving forces. The number of patents is, moreover, a criterion of choice for assessing the innovation efforts of a company or a country, although this criterion is sometimes discussed for not taking into account the real relevance or quality of protected inventions.
In this regard, a quick search of patent applications including the term “COVID-19” on the public database PATENTSCOPE, gives nearly 2000 occurences all published between 2020 and 2021. It is therefore clear that intense activity began as soon as the virus emerged in 2019, taking into account the 18-month delay before the publication of patent applications.
In comparison, the number of patent applications containing the term H5N1 in the same database is less than 1000, published from 2005, the date of the emergence of the corresponding influenza in humans, to today in 2021. Only about 60 patent applications were published between 2005 and 2007, and about 130 between 2005 and 2008. This is a big difference from the 2000 COVID 19 applications already published.
It is understood that in this case the driving force of innovation is not so much the patent as the need and urgency for therapeutic solutions. The intensity of the COVID-19 crisis and its prospects in terms of duration, which are not comparable to those of the 2005 avian flu, are reflected in the increased number of patent applications. According to this reading, the COVID-19 pandemic is a much greater incentive than the H5N1 pandemic, in terms of its severity, scope and remaining threats.
But it is also an incentive in terms of possible returns on investment. For this reason, the number of patents reveals above all the hopes of maximising the profits of a future blockbuster. If we consider the time needed for scientific research to establish a specific solution ex nihilo (from scratch), it is very unlikely that it will appear as soon as the pandemic emerges, as was the case with patents. Indeed, the large number of patent applications published since 2019 on the subject reflects more the protection of knowledge already developed, for possible use against COVID 19, than research efforts on the disease itself. This does not necessarily mean that there are no real research efforts, but that these possible efforts cannot reasonably be the source of the patent applications published to date.
Considering the patent as a driving force of innovation is therefore incorrect in this case. Considering it as a marker of innovation is perhaps more accurate, although substantive research is most often the preserve of public institutions, and not suitable for patents. Nor does the number of patents, on its own, provide a measure of the quality or relevance of the corresponding inventions. Patents are not so much about the quality of an invention as about the quality of its protection.
On the other hand, the patent is revealed here as it was conceived, namely, an effective strategic tool for maximising potential profits. It is then a question of taking a date quickly, most often on a speculative basis. In this context, if the driving role of the patent in innovation appears debatable, it largely participates in securing the investments made in a new commercial opportunity. The question remains as to whether such investments should be made in the absence of patents, even in the event of a health crisis. Indeed, the commercial opportunity alone may not be sufficient to redirect research efforts towards an effective solution, especially if it appears to be ephemeral or temporary. Without the guarantee of patents, and probably other guarantees offered by the economic infrastructure, it is likely that vaccines would not have been produced so quickly. We note here the great responsiveness and agility of the pharmaceutical industry in reorienting its strategies in the direction of the future, making patents the needle of their compass.
