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04 May 2020
As the COVID-19 pandemic spreads across the globe, there has been a race against time as companies scramble to find a cure and be the first to own patent rights to a vaccine against the virus.
This race brings to light many challenges, especially the question of whether current and future research in the fight against COVID-19 is even patentable.
In South Africa, the Patents Act does not define an invention but rather lists a number of exclusions as to what could constitute a patentable invention. In particular, the act specifies that a scientific discovery is not an invention.
This raises the question of whether the genetic sequence of COVID-19 could be patented in South Africa. Naturally occurring nucleic acid sequences would likely be considered unpatentable by the courts, as they would be considered to be discoveries of substances found in nature.
This being said, synthesised nucleic acid sequences which are significantly different from naturally occurring sequences would qualify for patent protection.
A pharmaceutical composition or drug for the cure or treatment of the virus would be patentable and here many facets surrounding the pharmaceutical composition could be explored. For instance, biomolecules derived from natural sources (eg, antibodies and enzymes) would be patentable as long as they are isolated and characterised for a specific use.
The Patents Act further excludes "a method of treatment of the human or animal body by surgery or therapy or diagnosis practiced on the human or animal body" from patentability. This would apply in determining whether a method for treating a person who is infected with COVID-19 would be patentable. Such a method would not be patentable in South Africa, as the method would fall within the ambit of the exclusionary subject matter of the Patents Act.
However, a diagnostic kit for the detection or diagnosis of COVID-19 by using a sample from a patient would be patentable. Further, a device for assisting in treating the disease, such as an improved ventilator, would also be patentable. For example, in northern Italy and due to the shortage of ventilator masks, a 3D printing company, Isinnova, has invented masks out of scuba equipment.
Where an existing drug shows efficacy against COVID-19, the patenting of the new use of this known drug would not be permissible in South Africa. This would have particular application with regards to Remdesivir, an antiviral drug developed by Gilead Sciences for the treatment of the Ebola virus. Any patents directed to the use of Remdesivir for the treatment of COVID-19 would not be patentable in South Africa.
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