The Multi-University Agreement and the UAEM Framework Ady Barkan (Yale Law)

1. The Multi-University Agreement and the UAEM Framework Ady Barkan (Yale Law) Karolina Maciag (Harvard Medical) Krishna Prabhu (Harvard College) UAEM International Conference November 14, 2009

2. The Multi-University Process: Timeline 2007 – Meeting with Larry Schlossman – Not a big player in the Harvard OTD, declined invitation to come to an event October 2008 – At Yale Law School reunion, President Clinton endorses UAEM approach December 2008 – Yale UAEM meets with the new Provost, Peter Salovey, who agrees to establish a process for articulating Yale’s tech-transfer policies

3. Jan 21, 2009 – Harvard UAEM discusses access licensing with new School of Public Health Dean Julio Frenk. Feb 2009 - GSK CEO Andrew Witty unveils global health strategy at Harvard Medical School March-May 2009 – Harvard UAEM faculty outreach, Dean Frenk pledges support February 2009 – Yale UAEM begins monthly meetings with Deputy Provost Stephanie Spangler and TTO Jon Soderstrom over creation of a formal Yale policy on technology transfer April 2009 - Harvard UAEM publishes an op-ed in the Harvard Crimson, eliciting a reply from TTO head Isaac Kohlberg emphasizing Harvard's mission for the global good and providing the first written articulation of Harvard’s pro-access practices. April / May 2009 – Yale UAEM and Yale administrators seem to be very close to agreeing on a very strong policy statement May 2009 - Harvard UAEM delivers a petition to Provost Hyman to establish a Committee with a mandate to weigh and establish a definitive, written global access policy. 24 faculty, 11 student groups, and many student signatories. Spring 2009

4. Summer 2009 April / May 2009 – Jon Soderstrom of Yale and Isaac Kohlberg of Harvard decide to organize a multi-university process May 21, 2009 – Harvard UAEM meets with Provost Hyman and TTO Isaac Kohlberg and learn of plans to organize the multi-University Agreement June 6, 2009 - Harvard UAEM meets with Harvard OTD and two “global-health” minded CEOs; “incentives, not licensing” are pushed June 9, 2009 – University Roundtable meeting at Harvard with TTOs from Penn, Berkeley, Boston University, Columbia, and UBC, with Berkeley calling in. UAEM gives a 30 minute presentation/Q&A, but is not invited for the whole day

5. Fall 2009 September, 2009 – Yale administrators tell Yale UAEM that the multi-university group is close to releasing a document, but unwilling to share with UAEM until after approval by university presidents October 2009 – Yale administrators tell Yale UAEM to expect public release by the end of the year November 9, 2009 – Statement of Principles and Strategies released in collaborative launch

6. What does this document say? What does this document mean? What does this document mean for UAEM?

7. Transparency • UAEM Framework: • Every university-developed technology with potential for further development into a drug, vaccine, or medical diagnostic should be licensed with a concrete and transparent strategy • Multi-University Statement: • [We commit to] Share with one another our collective experiences from working with our licensees in implementing these principles to continually advance our goals. To that end, we will cooperate in the creation of: • A compendium of best practices, tools and techniques; and • A consistent means of reporting on our global access initiatives and activities.

8. Rhetoric • UAEM Framework: • #1. Access to medicines and health-related technologies for all is the primary purpose of technology transfer of health-related innovations. • Multi-University Statement: • We have created new methods to deploy cutting-edge knowledge toward potential public benefit by enticing risk takers to invest in our early stage technology in the hope of possible downstream commercial applications. In recent years, the licensing practices involved in such commercialization have expanded to promote explicitly global access to university-developed technologies, ensuring that advances in health reach those who need them most.

9. Access to end products • UAEM Framework: • #2. Technology transfer should protect access to the final end product needed by patients (e.g., formulated pills or vaccines). • Multi-University Statement: • It is not always possible at the time of license negotiation to anticipate all of the ways a health-related technology may be used in developing countries. Accordingly, we will strive to preserve our institutions’ future rights to negotiate effective global access terms through implementation of such measures as notice requirements coupled with “agreements to agree.”

10. Generic provision • UAEM Framework: • #3. Generic provision is the best way to ensure access in resource-limited countries for products that also have markets in developed countries. Legal barriers to generic production of these products for use in resource-limited countries should therefore be removed. • Multi-University Statement: • Our intellectual property should not become a barrier to essential health-related technologies needed by patients in developing countries. In cases where universities can fully preclude intellectual property barriers to generic provision by not patenting in developing countries, or by filing and abandoning patents, we will pursue these strategies.

11. Will generic production be the default plan? Democratic National Convention (DNC) 2008 Platform: Renewing America’s Promise (p. 44): “We also support the adoption of humanitarian licensing policies that ensure medications developed with the U.S. taxpayer dollars are available off patent in developing countries.” http://www.democrats.org/a/party/platform.html

12. Generic provision, cont.: Exceptions • Multi-University Statement: • We will seek patent protection for such technologies in developing countries only in a manner that is consistent with our objective of facilitating global access. For example, it may be necessary to account for special circumstances (e.g., in India, China or Brazil) that may warrant patenting in such countries on a case-by-case basis, including but not limited to: • The existence in a developing country of pharmaceutical manufacturing capacity suitable to support product distribution both within and outside the developing world; or • The opportunity to gain greater leverage in seeking concessions, such as access to others’ intellectual property, that would help to ensure that the health-related technology can be made available affordably; or • To enable our licensee(s) to implement tiered pricing in those developing countries where a significant private market exists.

13. The specter of parallel importation (again) • Multi-University Statement: circumstances in which to patent • The existence in a developing country of pharmaceutical manufacturing capacity suitable to support product distribution both within and outside the developing world • We find that PI [parallel importation] is not likely to significantly undermine total profits and should not be a main concern when considering the impacts of open licensing in developing areas • …the total value of [parallel] imports [into the US] estimated by IMS Health and HHS ($1.4 billion in 2003) are small … in 2004, total sales for the entire pharmaceutical industry amounted to $235.4 billion.

14. Alternatives to generic provision • UAEM Framework: • #3. In the cases of biologic compounds or other drugs where generic provision is forecast to be technically or economically infeasible, “at-cost” or other provisioning requirements should be used as a supplement to generic provisioning terms but should never replace those terms. • Multi-University Statement: • In those cases where we pursue patent rights, we will negotiate license agreements that draw upon a variety of strategies that seek to align incentives… to promote broad access … not limited to: • Financial incentives to licensees (e.g., elimination or adjustments to royalty rates); • Reserved or ‘march-in’ rights, mandatory sublicenses or non-assert provisions; • Affirmative obligations of diligence, with license reduction, conversion (i.e., to non-exclusivity) or termination as the penalty for default; and • Tiered- or other appropriate pricing on a humanitarian basis (e.g., subsidized, at-cost or no-cost).

15. Proactive licensing • UAEM Framework: • 4. Proactive licensing provisions are essential to ensure that follow-on patents and data exclusivity cannot be used to block generic production. Other barriers may need to be addressed for the licensing of biologics. • Multi-University Statement: • Early publication and wide dissemination of results will be encouraged to reduce opportunities for interfering patents. • … • In those cases where we pursue patent rights, we will negotiate license agreements that draw upon a variety of strategies that seek to align incentives among all stakeholders to promote broad access, [including]… • Reserved or ‘march-in’ rights, mandatory sublicenses or non-assert provisions

16. Interpretations Yale Patent in BRIC countries, non-assertion Refrain from patenting in BRIC Harvard Patent in BRIC countries, assert Reserve rights to sub-license to non-profits, governments, and aid agencies

17. Metrics • UAEM Framework: • 5. University licensing should be systematic in its approach, sufficiently transparent to verify its effectiveness, and based on explicit metrics that measure the success of technology transfer by its impact on access and continued innovation. • Multi-University Statement: • We will work together to develop and apply meaningful metrics to evaluate the success of our efforts to facilitate global access and support continued innovation with particular relevance to global health.

18. Opportunities for UAEM / Living document • Multi-University Statement: • Educate others and encourage their consideration, endorsement and application of the principles articulated in this statement; and • [Get your university to sign on!] • Revisit these principles on a biennial basis, to ensure that they reflect currently-understood best practices.

19. (Another) devil is in the footnote • Multi-University Statement: • 1 The decision about precisely which health-related technologies merit global access licensing is complicated and will be the subject of ongoing evaluation by our organizations. While the principles articulated in this statement currently are directed primarily at therapeutics and vaccines, their application to medical diagnostics and devices will be assessed case-by-case on an ongoing basis

20. Vigilance that practices will change

21. Will practice live up to policy for non-communicable disease applications? WHO, Preventing Chronic Disease : A Vital Investment. 2009 Cited in SmartGlobalHealth.org

22. Will practice live up to policy for non-communicable disease applications? Deaths due to noncommunicable disease World Health Organization, World Health Statistics 2008, Geneva: 2008. Cited in SmartGlobalHealth.org

23. Transparency Trap? Principles written with transparency among TTOs in mind Transparency within university community? Chicken and egg problem – Need a good reason for transparency! Need transparency to find a good reason!