Written By: Sophia Iams
In response to the novel coronavirus (COVID-19) outbreak, infecting over 193,000 individuals and contributing to over 7,800 deaths , the Chinese government is aggressively trying to stop the transmission of the disease and treat those infected. The Wuhan Institute of Virology and BrightGene, a Chinese drug manufacturer, raised concerns of potential circumvention or violation of the intellectual property rights of Gilead Sciences’ investigational drug, remdesivir.  Recent in-vitro studies demonstrate remdesivir is a potential treatment against COVID-19. 
China’s reputation for lax intellectual property protections in the pharmaceutical industry  has the current situation playing into those fears. From a patent application filed in 2016, Gilead is still waiting for a decision from the Chinese Patent Office for a patent protecting remdesivir.  On January 21, 2020, the Wuhan Institute of Virology applied for a “use patent” in China for remdesivir for its specific use in treating COVID-19.  On February 12, 2020, BrightGene issued a press release indicating the company started mass-producing the active ingredient in remdesivir and working on creating complete doses. 
These initial actions are concerning for a few reasons. First, if Wuhan Institute of Virology receives the patent, the Chinese government could use that to negotiate an unfair price for licensing rights from Gilead.  Wuhan Institute of Virology has also noted that it would attempt to use the Patent Cooperation Treaty (“PCT”) to export the manufactured drug to cooperating nations.  The PCT allows patent protection in many countries through a single “international” patent filing with the World Intellectual Property Organization.  Alternatively, the Chinese government could act within its rights under World Trade Organization rules to issue a compulsory license that would enable remdesivir’s use without Gilead’s consent.  A compulsory license is intended to allow the original patent holder and presumably the manufacturer to receive a licensing fee, raising the question of which organization will ultimately hold the patent in China.  In addition, now that the drug is manufactured by BrightGene, Gilead could be excluded completely. 
As of late-January, Gilead is working with various global health authorities, including Chinese health agencies, to perform experimental human clinical trials using remdesivir.  Two phase 3 trials have been initiated in Wuhan with the goals of enrolling 760 patients and obtaining preliminary results in April 2020.  The U.S. and international intellectual property community will closely monitor the Chinese government despite the previously improved cooperation between the U.S. and China. 
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