The death toll from coronavirus is rising rapidly in China. According to information released by the Chinese press, the Ministry of Science and Technology (MOST), the National Health Commission and the National Medical Products Administration, approved the use of a drug called Remdesivir against the novel coronavirus.
This drug developed by the American pharmaceutical company Gilead Sciences and has previously been effective in treating SARS and MERS.
Chinese scientists have found Gilead's remdesivir, and chloroquine, an 80-year-old malaria drug, "highly effective" in laboratory studies at thwarting the novel coronavirus. With this regard, the Wuhan Institute of Virology (WIV) decided to seek patent protection for the new use of remdesivir to inhibit the coronavirus in China. This research institute filed a Chinese patent application and a PCT patent application on 21 January 2020.
The Company, Gilead attempts to cooperate with China-Japan Friendship Hospital to trial the use of the antiviral on 270 patients. The chicness researchers believe that having a patent would lead to cross-licensing situations that give China more bargaining power in negotiating the licensing fee with Gilead.
However, there are challenges regarding filing a new use of an existing patent. It is true that the new use of an existing patent, is patentable, but it is difficult to meet the statutory requirements for patentability and involve an inventive step.
It is not clear if or when China's intellectual property authorities will approve the institute's application. The patent filing will need to prove that the drug works on this coronavirus strain, in a way that is different from how it works on other viruses in the same category.
Moreover, the Chinese government can invoke compulsory licensing under Articles 48- 50 of the Patent Law where the rapid production of a medicine in a public health emergency is warranted.
The china’s researcher believed that patenting coronavirus would beneficial for china since if Gilead intends to sell the drug to other countries for fighting new coronavirus, it will have to negotiate with China as the country who owns the patent for that specific purpose.
It worth to wait and see the response of the Chinese patent system to this challenging patent in terms of patent eligibility. Undoubtedly, the patent of this innovation, and the reaction to it, can point out some future directions in this area.