Patent pools settle IP ownership disputes, reduce transaction costs, facilitate cooperation without changing existing patent law

Certain of the reforms noted here are worthy of consideration in particular circumstances no matter what, if anything, were to occur with global IPR reform.  

Patent Pools.  One can imagine the utility of patent pools in at least two circumstances.  First, when the existence of multiple IP owners requires coordination, particularly when the IP in question is under dispute, patent pools represent a possible solution. This has been discussed in relation to genomic and biotechnology patenting, for example, to reduce transaction costs and facilitate the bringing together of multiple gene sequence owners for DNA microarrays and diagnostic tests (Clark, et al., 2000). The worry in this context is that the high transaction costs associated with negotiating between multiple IP owners could prevent inclusion of all the necessary gene sequences for a clinically effective diagnostic test.  In global health, patent pools have most recently been discussed in relation to the production of a SARS vaccine (Simon, et al., 2005).15   

According to Simon et al. (2005), the severe acute respiratory syndrome coronavirus (SARS‐CoV) might provide the test case for patent pooling in the health sciences.  This is because the research and sequencing that led to the identification of the virus following the 2002 outbreak occurred in a particular way: • over a short period of time, making the patent applications at similar stages and with few third party agreements to complicate matters;   • within four parties that hold the key patent applications for SARS‐CoV (CDC, Health Canada, Versitech, Ltd., and CoroNovative BV); • without, as yet, a market for SARS related products, providing an incentive to contain costs; and, • a close involvement with public health‐related organizations who would like to drive the process forward. (Simon, et al., 2005 709)

Thus, the SARS patent pool demonstrates the potential of pooling as a way to work within existing patent law to foster the development of an important product (i.e., the SARS vaccine).  Another area where patent pooling could be effective is in facilitating fixed dose combinations (FDCs), as the treatment of many health conditions (such as TB and HIV) often requires the administration of multiple different drugs per day – a situation that could be helped (and has been helped in the case of HIV), by FDCs (Kaplan, 2003a, Kaplan, 2003b).  Importantly, for these initiatives to go forward does not require global IPR reform.