Patents & Licencing

Key Trends

• TRIPS/Doha The industry continues to take a conservative attitude towards the Doha Declaration and offers only qualified support for the flexibilities of the World Trade Organization’s agreement on the Trade-related Aspects of Intellectual Property (TRIPS).
• Non-exclusive voluntary licencing Companies have made progress in engaging in non-exclusive voluntary licences or equivalent practice. Greater emphasis should be placed on increasing product and geographical scope and inclusion of sustainable, pro-access technology transfer in these agreements.
• Patent pools Companies display a cautious approach to engaging seriously with the Medicines Patent Pool. One company has signed on; four others are in active negotiation.

Research-based companies have traditionally been very concerned about protecting their intellectual property, which is the basis of their business model. They are wary of relaxing their attitude in this area, in case any single measure has unintended negative effects. Company activity since 2010 captured by the Index does not indicate a significant relaxation of the industry position.

Leaders

Gilead leads the field in patents and licencing in 2012, displaying a progressive view of intellectual property as an enabling tool that can both facilitate access to medicine and contribute to business growth. Its improvement in ranking this year from 4th to 1st place is attributable to its engagement with the Medicines Patent Pool and its increasing use of non-exclusive voluntary licences (NEVLs) as a mechanism for tapping into the capacity of generic producers to support access to medicine.

Johnson & Johnson has significantly improved its performance to rise from 11th to 2nd in this area and this can be attributed to increased public transparency regarding its attitude towards TRIPS flexibilities and public disclosure of a limited range of patent statuses. Since the 2010 Index, Johnson & Johnson has issued NEVLs and is also engaged in related technology transfer. On the other hand, it has declined to enter into formal negotiations with the Medicines Patent Pool.

GlaxoSmithKline, ranked 3rd, still performs strongly across the board, relative to peers, and should be noted for its constructive, transparent approach across most patents and licencing measures. Its standing has fallen slightly since 2010 largely because it has stood still, with a lack of significant progression since 2010 on licencing activity, particularly in licencing that incorporates technology transfer.

Most improved

Besides Johnson & Johnson, other companies performing more strongly this year are Bayer (up seven places) and Sanofi (up five places). In both cases this is due to a greater degree of disclosure to the Index of their positions on TRIPS and its flexibilities and their stance on enforcement and filing of patents in the Least Developed Countries (LDCs).

Fallers

In the face of tougher indicators, especially around NEVLs, the ranking of some companies has dropped because of a lack of significant additional activities. Astellas fell by six places because it has yet to follow through on the commitment it made in 2010 to  engage in NEVLs and has no stated plans to engage in them in the future. Bristol-Myers Squibb (down five places) and Eli Lilly (down eight places) have also not  demonstrated significant progress since 2010, with Bristol-Myers Squibb failing to disclose any detail of patent status in LDCs, and Eli Lilly reporting an ambiguous stance on TRIPS.

The lowest-ranked companies (Astellas, Daiichi Sankyo and Takeda) are those that are silent on the relationship between intellectual property and access. They fail to engage in NEVLs or equivalent strategies and do not disclose their policy on TRIPS and the Doha Declaration. Some credit should be given for their openness regarding TRIPS lobbying activities. None of the three  provide information about patent status in relevant countries, and  Daiichi Sankyo and Takeda do not declare a commitment to refrain from patenting in LDCs.