Patent specifications are legal documents which define the scope of protection awarded to an invention. You might therefore expect that patents are only of interest to the patent owner, and their competitors. On the contrary, patents are a treasure trove of information which can help researchers find solutions to technical problems, including new diseases like Covid-19.
A fundamental principle of patent law is the “patent bargain”: In return for a 20-year monopoly over their invention, a patent applicant must share the invention with the world by describing it in sufficient detail to enable a “skilled person” (someone having expertise in the relevant technical field) to put it into practise. To meet this legal requirement, a patent specification will contain detailed information about the invention, including how to make and use it. In the life sciences field, patents will typically contain experimental methodology and data demonstrating that the invention solves the problem it claims to. For this reason, patent specifications can provide a valuable source of technical information which may not have been published elsewhere.
Patent applications are published 18 months from filing, after which their specifications can be accessed freely using databases including WIPO’s Patentscope, Google Patents, and the European Patent Office’s interface Espacenet, which contains over 120 million published patent applications. The database can be searched using patent numbers or a combination of key words, applicant or inventor names, and classifications.
To help researchers mine the patent literature for information relevant to coronavirus, the European Patent Office has created a series of bespoke search strategies to identify patent documents relating to different aspects of the virus, from vaccines and therapeutics to diagnostic assays and microscopy. Further search strategies could be constructed to identify documents in other relevant fields, for example ventilators. Using these search tools, researchers can build on the knowledge contained within patent documents to develop new innovations for the detection, diagnosis and treatment of Covid-19.
While patent documents are a valuable source of inspiration, it is important to remember that carrying out an invention which is protected by a patent in the relevant territory, without a licence from the patent owner, constitutes infringement. Exactly what activities do and don’t constitute infringement will be determined by the patent claims – a list of legal statements at the end of the patent specification defining the scope of protection – which can be tricky to interpret. Furthermore, while UK law provides a research exemption, which excludes from infringement acts done for experimental purposes relating to the subject matter of a patented invention, this provision has been interpreted narrowly by the UK Courts. Outside of the UK, the position on research exemptions varies between countries. It is therefore advisable to check with a legal expert before proceeding with any activities which might risk infringing a granted patent.
Through the additional knowledge gained from the patent literature, a new solution to a problem may be developed. In this case, it is worth considering filing a patent application to protection this innovation. Although filing patents can seem counter-intuitive to those wishing to share their knowledge in the fight against coronavirus, securing IP rights can help to get a new product to patients more quickly by attracting investors, enabling trials and facilitating collaborations. Filing a patent application also gives the innovator control over who uses the invention, as well as over potential future developments of the invention. As a final point, obtaining a patent does not prevent you from infringing others’ rights. Patents searches are therefore also a useful tool for determining your freedom to operate before entering the market.
Jennifer Bailey – Patent Director at HGF.