Vaccine Patents & Co: Buschmann sees compulsory licenses as a Sword of Damocles

At a conference of business associations in Berlin on World Intellectual Property Day on Friday, Federal Minister of Justice Marco Buschmann took up the cudgels for the preservation of intangible property rights. Especially during the coronavirus pandemic and the dispute over the release of vaccine patents, there have been repeated calls for compulsory licenses, explained the FDP politician. The EU Commission is also advocating this with its draft patent package. Buschmann views this very skeptically and as a "form of expropriation". This means that a "sword of Damocles" always hangs over investments in intellectual property and thus also over innovations, although the latter continue to be "the great opportunity for the future of our continent".

At a hearing in the Bundestag in 2022, several of the invited experts advocated the slogan "public money, public vaccines" and thus a more effective use of taxpayers' money. After the first few months of the coronavirus pandemic, former Chancellor Angela Merkel (CDU) also described a future vaccine against the rapidly spreading infectious disease as a "global public good". But a few weeks later, a campaign by the pharmaceutical industry led to a U-turn.

The government "fought endless night shifts" against the vehement demands for a patent release, Buschmann revealed. The EU Council also initially relied on the flexible options provided for in the "Agreement on Trade-Related Aspects of Intellectual Property Rights" (TRIPS). In principle, this also includes an exception to patent protection with the so-called "waiver". According to Buschmann, however, such a step would also have been tantamount to an announcement to the German vaccine manufacturer Biontech: "We are taking away the core of your business model." If such companies had been expropriated of their intellectual property, they would no longer have been able to use it in the usual way to solve humanity's problems.

Anti-patent movement as an intellectual crisis sign

Buschmann described appeals for permission to "shift all resources back and forth" as an "outgrowth of an intellectual crisis". Sociologist Philipp Staab spoke of the longing for a "protective technocracy" with a centrally managed economy at its heart. For the liberal, however, the human community is strengthened less by a planning, collective central power that leads to bureaucracy and encroachment than by "the power of the individual, the researcher". Fair international rules for the protection of intellectual property rights are therefore still crucial. It is important to fight for this so that this model does not become increasingly defensive worldwide.

Buschmann celebrated the establishment of the European Patent Court to enforce the new unitary patent as a "historic milestone". Entire generations had been involved in getting the institution up and running. In the end, the project almost failed due to "national egoisms", as France and Italy had also filed claims for central divisions. Branches of the Central Division of the Patent Court will now be set up in Paris, Milan and Munich. The Minister praised "the fact that we were able to establish the Institute of Technical Judges from Germany in particular".

Considering the complicated contract law, however, scientists believe that this is a "risky bet". Opponents have long warned that with the Europe-wide enforceability of industrial property rights, more software patents could be abruptly confirmed in the participating countries, even though their allocation is controversial. Meanwhile, Alissa Zeller, an expert for intellectual property (IP) at BASF, was surprised at the digital inventors and coders joining the company, who were pushing the "open-source philosophy". This is "annoying, complicated and wrong". Because five years later at the latest, it will be expensive if their innovations are not protected. She is also often surprised that smaller companies apply for a bad patent at national level and then disclose their technologies worldwide. This means that their product can no longer be positioned well.

China uses patents as a strategic instrument

The patent system creates incentives for innovation and offers fair compensation for progress, emphasized Eva Schewior, President of the German Patent and Trade Mark Office (DPMA). She was therefore confident that German companies also filed more patent applications last year than in 2022. At the same time, however, she pointed out that countries such as China and South Korea were increasingly using industrial property rights as a strategic instrument. According to a recent DPMA analysis, the Middle Kingdom increased its applications for renewable energies alone, including solar technology, from 56 to 117 (+108.9%) year-on-year, bringing it into line with Germany.

In battery technology, Korea ranks first in 2023 with 1638 applications (+40.5%). China follows in second place with 1313 applications (+78.8%). This means that almost half of all patent applications for battery technology came from these two countries. The situation is now similar for computer technology and artificial intelligence (AI), explained Schewior, even if the USA is still in first place here. For the DPMA Director, one thing is clear: "We need to raise awareness of intellectual property." The office has therefore already held a workshop on "computer-implemented inventions" and is currently preparing a social media campaign for young entrepreneurs.

Siegfried Russwurm, President of the Federation of German Industries (BDI), complained that the Federal Government was producing many national strategies. However, the protection of intellectual property was "not necessarily explicitly included". This also applies to the coalition agreement. However, the industry trusts "that intellectual property rights will be strengthened". This is not an orchid issue because "Germany as a business location must draw new strength". The lever par excellence for this, "which is entirely in our hands, is innovation". Intellectual property is of fundamental importance for this. This remains a key resource even in the age of AI. However, he doubts "whether ChatGPT has learned this yet".

At the same time, the BDI published "Key points of an IP strategy for Germany". Global challenges such as climate change and the development of socially relevant future fields and key technologies, as well as the digital transformation, require a master plan "to establish intellectual property as an anchor point of the knowledge society". The speed at which intellectual property rights are obtained must therefore be adapted to the speed of digital technologies. In key technologies in particular, it is important to clearly define the protection of intellectual property rights and to rapidly drive forward global standardization.

(nie)