As the COVID-19 pandemic has spread across the globe over the last few months, a race against time has ensued 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 with regards to whether or not current and future research in the fight against the COVID-19 virus can be patented in the first place.
In South Africa, our Patents Act does not define an invention but rather lists a number of exclusions as to what would constitute a patentable invention. In particular, the Act specifies that a scientific discovery is not an invention.
This leads to the question of whether the genetic sequence of the COVID-19 virus itself could be patented in South Africa. Naturally occurring nucleic acid sequences would likely not be considered to be patentable by our courts, as they will be considered to be discoveries of substances found in nature.
This being said, synthesized nucleic acid sequences which are significantly different from naturally occurring sequences would qualify for patent protection.
A pharmaceutical composition/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 (such as antibodies, enzymes and the like) would be patentable as long as they are isolated and characterised for a specific use.
Our 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 be applicable in determining whether a method for treating a person who is infected with the COVID-19 virus 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 our Patents Act.
A diagnostic kit, however, for the detection or diagnosis of the COVID-19 virus by using a sample from a patient would be patentable. A device for assisting in treating the disease, such as an improved ventilator, would also be patentable. In northern Italy and due to the shortage of ventilator masks, a 3-D printing company, Isinnova, has invented masks out of scuba equipment.
Where an existing drug shows efficacy against the COVID-19 virus, 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 the COVID-19 virus would, in South Africa, not be patentable.
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