Fernando Becerril Orta
Senior Partner
Becerril, Coca y Becerril
Expert Contributor

IP’s Role in Access, Development of Medicine, Medical Devices

By Fernando Becerril | Mon, 09/06/2021 - 13:03

As is well known, intellectual property (IP) is a legal tool that in recent decades has acquired notable relevance for the development of countries and their economies.

We can define intellectual property as a group of legal norms developed and incorporated in the laws of most countries as well as in various international treaties and that help to promote scientific progress, technological development and, in general, economic development.

However, despite the above, IP has two main functions. The first is for the inventor(s) or rights holder(s) to whom, in addition to granting recognition for the technological development, it offers a period of exclusivity for the exploitation of that technology. The second is the social benefit that the adoption of technology can generate in society. For a technological development to be considered as patentable, it must meet the fundamental requirements of novelty, involve an inventive step and be capable of industrial application; that is, it should be something that did not previously exist, be the result of an innovation process, reproducible and that solves a specific existing technical problem.

Hence, when we talk about inventions or patents, we find countless technological developments that are generated in the world for a wide variety of economic sectors that range from primary industries to services and creative industries.

In this sense, for those who participate in the sector of fundamental human needs, such as health, it is clear that one of the sectors that most uses the mechanisms for the protection of industrial property rights (IPR) in a global way is the health industry.

In the past year and a half, we have experienced a health emergency that has significantly disrupted our lives. This pandemic has forced all economic sectors to redefine themselves and thereby rethink many of their traditional activities. The tourism industry, the financial sectors, primary industries or transport and logistics-related sectors have had to innovate in their business processes as an imperative need to stay active and current in an increasingly competitive market that is additionally depressed by the global economic situation.

The health-related industry has not only had to face this need to innovate and even reinvent itself but it has also had to do so in a very short time, urgently solving needs that have arisen as a consequence of the serious and delicate health situation that threatens the world's population.

Tons of paper and ink have been used in recent months to discuss the COVID vaccine. Society's achievement of having a vaccine in such a short time and with the results that have been obtained so far are the result of the creative way with which the crisis was faced as well as of the efforts of many people. The challenge led us to develop a suitable product that, a few months after starting the application of the vaccines, let us have a better future perspective not only on the health issue but also from an economic point of view.

It must be said that a good part of the innovation process developed in recent months for the creation of the vaccine is supported by mechanisms and rights endorsed and protected by industrial property. It would have been much more complicated to have reached a result like that which we have today without previously generating technologies that were essential for the development of vaccines, licensing agreements among IPR owners around the world and from a massive collection of documents that are now available in the public domain and that enabled a quick advance in innovative developments without having to start from scratch. Thus, IP not only “promotes monopolies" to IPR holders but also becomes a fundamental asset for technological development that allows our society to react effectively in the event of a contingency such as that which we are living today.

But it is not only about the vaccine. In parallel, the world is also working to find a medicine that works against COVID-19 in the same way that today there are many others for a great diversity of diseases. It is likely that in the coming months we will have very good news in this regard and, once again, IP will be a booster for this innovation process.

We cannot fail to mention the market for medical devices. Although it is true that medicines are essential in the healthcare environment and that is why in Mexico this industry is considered an IP-intensive industry, we must not fail to consider that in the health sector, it is also essential to think about all the necessary resources for providing adequate health protection. Thus, from artificial respirators, surgical instruments, diagnostic and clinical analysis equipment to prostheses and syringes, they all provide a relevant contribution in the sector. Although these developments are sometimes not very valued, they have also grown their participation and relevance in the development of the health industry with their corresponding contribution to the growth of the economy.

Speaking quantitatively, it is worth mentioning that the OECD countries represent more than 82 percent of the world's patent applications, leaving less than 20 percent for all those countries that are not members of the organization. It is relevant to note that among these non-OECD countries we find China and India, countries that have a significant contribution to patent protection. So, if we consider the OECD member countries and incorporate China and India, the number of applications submitted by all these countries corresponds to more than 90 percent of the total worldwide patent applications.

Focusing on related technologies within the medical sector, in addition to the traditional inventions of the pharmaceutical industry, we can now add all those related to sterilization methods, absorbent products, diagnostic devices, food and drug administration devices, radiation, ultrasound, magnetotherapeutic or electrotherapeutic devices and many others that have had remarkable growth in recent years, to the extent that, according to data provided by the World Intellectual Property Organization, in the US, medical technology has become the second-most relevant technical field for protection. The health-related industry is only behind computer technology and even ahead of digital communications, surpassing sectors like metal-mechanical, chemical and transport as the most relevant.

In our country, patents related to the health industries have increased in the last 15 years, which, depending on the specific technological sector, is estimated at between 30 and 80 percent. The segment that has had the greatest increase corresponds to devices and instruments for diagnostics and surgery. Second is that related to preparations and chemical compounds with some type of specific therapeutic activity.

Thus, we can conclude that industrial property is not only a tool used by industrial sectors for the development of their own industries but it is also a development engine that has allowed the world’s most important economies to generate a better investment environment, technological development and with it, to improve the conditions and access to health and general well-being for the entire population.

Photo by:   Fernando Becerril