Carel Smit

How might the covid IP waiver hit the life sciences scene?

Being from Africa and having originally trained as a virologist, I take a keen interest in the cross-over between IP rights and pandemics. IP provisions aiming to curtail IP rights have not staunched innovation in the medical field in the past and may in fact spur further innovation. These types of attempts at restricting IP rights, while well-intentioned, may also have the perverse outcome that the newest, most innovative versions of therapeutics fail to make it in good time to countries most in need. While being neither a proponent nor detractor of an IP waiver in general, I think that more innovation in distributing healthcare services and products may have a greater impact than a waiver that only focuses on intellectual property. I do, however, continue to encourage actions that challenge the status quo, especially in the field of intellectual property, even if they may ultimately not have the ground-breaking impact that had been hoped for.

Earlier in your career you took a break from IP law to start an award-winning medical devices company that has assisted patients in more than 15 countries. What led you to start your own company and what advice do you have for anyone considering taking the same step?

I was at a point in my career where I no longer wanted to work in private practice. I made a deal with myself: when stepping out of private practice, I would pursue every commercial opportunity available to me. This is a rather pervasive and costly character flaw of mine; I want to experience innovation from every possible angle, not just through the lens of legal practice. It was an eye-opening experience that taught me more about the impact of intellectual property on clients and how to wield it in business than many years of private practice would have done. Ultimately, I sold my stake in the medical devices company to emigrate to Australia, but it has continued to shape my approach to IP strategy.

How have client demands changed over the course of your career – and how has your practice evolved to deal with this?

My practice has evolved significantly, though this is driven more by my own interests rather than client pressures. I no longer file patent applications and took a study break to complete an MPhil degree in biosciences enterprise at Cambridge University. This brought me up to date with the newest trends in biosciences innovation, funding and regulatory issues, and formed the basis for my current practice which is focused exclusively on life sciences IP strategy and monetisation. I help my clients identify nascent intellectual property, coordinate the protection thereof, and develop IP narratives that make the intellectual property as investable as possible, and I feel this role is expanding every day. I am, however, of the opinion that I cannot function as an IP strategy consultant and be in the business of filing patent applications – in my mind, that is a conflict of interest.

What are some of the biggest challenges that your clients are currently facing in the life sciences fields?

There have been downturns in funding opportunities for start-ups in most parts of the development cycle over the past six months. Most rounds and valuations are down and we are seeing new funds stating that they will not support ‘ego-driven’ valuations. The good news is that, when you start looking at the details, there are differences in the current trajectory of different funding rounds. Many of my clients are approaching Series B rounds, which have remained buoyant even during the current downturn.

There has been much talk about the tension between antitrust and IP protections – have you seen any evidence of this, and if so, do you think it is likely to develop into a big issue for practitioners?

This is a seasonal question with ebbs and flows occurring in long cycles. I expect antitrust issues to play a bigger role during economic recessions, so in the current economic climate it is inevitable that antitrust issues will gain more limelight. While the United States has previously relaxed antitrust provisions during kinetic war efforts, they appeared to be unwilling to do so during the early stages of the global pandemic.