Research on Covid contracts

Last week, IP Draughts chaired two workshops that were held in London (at the Wellcome Collection) on the subject of Covid contracts.

He did so at the invitation of two IP law academics, Dr Alison Slade of the University of Leicester, and Professor Naomi Hawkins of the University of Sheffield. Alison and Naomi are engaged in an ESRC-funded research project, which is considering public policy issues that arise from the terms of Advanced Purchase Agreements (APAs) for the supply of Covid 19 vaccines. (Two years ago, IP Draughts commented on the APA between the European Commission and AstraZeneca here, here and here.)

Their paper, Intellectual Property Rights and Advance Purchase Agreements in a Crisis, is due to be published in IP Quarterly soon (if it has not already happened). The paper considers and compares the terms of 11 publicly-accessible APAs. As part of their continuing research, Alison and Naomi wanted to hear from practitioners how APAs and other agreements relating to medical technology (eg licence agreements) are designed, drafted and negotiated, and the extent to which policy objectives (eg public access to medicines) feature at each stage, particularly in relation to IP terms.

The first workshop was attended by IP lawyers in private practice, and the second by technology transfer managers and people working in public bodies, including those involved in the funding of medical research. Both workshops, which were held under the Chatham House Rule, produced an interesting and lively discussion that provided Alison and Naomi with very useful information for their research. As one contributor said afterwards:

I really enjoyed it and so did the other attendees I spoke with – the consensus was that we don’t get enough opportunities for a frank and open discussion of projects and practice and to do so was very rewarding.  It was also a great reminder that IP lawyers are a particularly nice bunch of people!

Among the many interesting points discussed were:

• the relative bargaining strengths of the governments and pharma companies in relation to APAs
• the presence of “walk-in rights” in the research funding terms of public funding bodies, both in the UK and USA, as well as statutory provisions such as the Crown User provisions for medicines in section 55 of the UK Patents Act 1977. Mostly, it seems that these rights are not exercised, and are thought of as a “nuclear option”. Instead, public bodies prefer to negotiate agreements on commercial terms.

Thank you to all the people who participated in the workshops.