High Court judge questions whether coronavirus should spark patent reform

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

High Court judge questions whether coronavirus should spark patent reform

birss-600-new.jpg

Mr Justice Colin Birss says possible measures could include specialist extensions to patent terms and a more collaborative approach among the medical community



England and Wales High Court judge Mr Justice Colin Birss has mulled whether changes to the UK’s patent system could help the country be better equipped to respond to emergencies such as the coronavirus outbreak.

The head of the patents division at the High Court questioned whether patent term extensions for drugs that are only used in an emergency, and a more collaborative approach among medical professionals, could help tackle the problem.

As it stands there is no vaccine for coronavirus (COVID-19). Around 95,000 people have been infected with the virus globally and more than 3,000 of those have died. The majority of cases have come from China’s Wuhan province, but cases are also spreading around the world, including in the UK.

“Why are there no vaccines?” Birss asked, pointing out that the SARS virus of 17 years ago was also a type of coronavirus and that unpredictability should not be a factor in a lack of vaccine development.

He added: “The patent system was fundamentally set up to incentivise innovation and to make money for inventors over a long period of time. A pill to treat this type of illness would not make as much cash, as you would only need to take it once.”

Birss said it would be a challenge to fund research into products where there is a public need but where the return is low over a long period of time.

Perhaps, he suggested, there should be a longer patent term for medicines of this type that can be bought over the counter in an emergency.

“I’m not saying this should happen and I don’t have an action plan with me but I’m asking whether this could be an option,” he said.

Also worth pointing out, said Birss, is that the patent system was not set up to encourage collaboration, but that, over time, this attitude has changed.

“It’s clear this is not true any more,” Birss said, referencing litigation surrounding fair, reasonable and non-discriminatory licensing in the telecoms industry.

He pointed out that in the tech community, group conversations on collaboration and licensing, and how to work out industry standards, do take place.

“Maybe standard-setting should be extended to also allow medical companies to share their ideas in this way? We may see further moves towards sets of patent systems with their own rules,” Birss said.

Birss, speaking at Managing IP’s International Patent Forum in London today, also addressed the shortage of specialist patent judges at the High Court.

As it stands, Birss is the only full-time judge able to hear category 4 and 5 patent cases (the most complex kind).

“I am the sole shopkeeper at the moment but we are managing,” Birss stressed. He pointed out that deputy judges and other IP specialists, including recently appointed Court of Appeal judge Lord Justice Richard Arnold and Intellectual Property Enterprise Court judge Richard Hacon, have both helped share the load.

Birss said he is hopeful that the court – which last year had three full-time patent judges – will be back to full capacity by October this year.

more from across site and SHARED ros bottom lb

More from across our site

This year’s IP STARS Americas rankings reveal that firms are expanding their capabilities, particularly in trade secrets and life sciences
Law firms’ expanding IP capabilities are driving broader industry recognition across a wider range of practice areas
As specialist boutiques challenge traditional firm models, major disputes involving Disney, Ericsson, Siemens and Dolby highlight the firms winning work before the UPC
The firm has added two leading damages specialists as it expands beyond technical analysis and deepens its role in the economics of IP litigation
Josh Seidenfeld, partner at DLA Piper, outlines the emerging legal trends that drive the future of life sciences innovation and how stakeholders can prepare for the future
South Korea's One Law Partners is combining with boutique firm Minwho Law Group to leverage global expansion of K-content and build a broader offering spanning IP, tech and regulatory advisory work
Russell Kennedy's Gina Tresidder on juggling matters, delivering hard truths, and why IP ownership is rarely as simple as people think
Attorney Oran Friar and trainee attorney Harry Cunliffe at Reddie & Grose, share that patent filings for clinical LLMs are surging, but success in the UK and Europe hinges on demonstrating technical innovation
Implementers can use the UK courts to seek FRAND terms for patent pool licences
The first credible UPC spinouts are growing, and they are coming from elite patent litigation teams, suggesting specialist litigators may no longer need large platforms to compete
Gift this article