Influenza viruses have not been subject to intellectual property rights historically. This tradition has been important because the required changes in influenza viruses contained in human influenza virus vaccines to match those viruses circulating currently in the field must occur at a speed far in excess of the legal process associated with the attainment of commercial protection. In order to allow rapid development of products such as vaccines and other interventions on an equitable basis by all countries and other interested parties, the convention has been for human health professionals to share virus specimens and data openly without creating barriers of exclusivity such as the filing of patents.Already, this public health crisis illustrates a strikingly different posture by China in contrast to its reaction to the emergence of SARS (Severe Acute Respiratory Syndrome) in 2003, most notably in transparency. During that period, China was not initially forthcoming with the details of the epidemic, and the absence of information impeded public health surveillance. When SARS appeared, the causative agent was not immediately known and it was finally identified as a novel coronavirus. In addition to the difficulties on obtaining actual epidemiological data during the crisis, the SARS crisis was also encumbered by the efforts of leading research groups to file patent applications on the SARS virus sequence. With respect to influenza viruses in general, progress in linking the sharing of virus genetic sequences to access to countermeasures (overcoming some of obstacles in the H5N1 pandemic) has occurred with the establishment in 2011 of the Pandemic Influenza Preparedness Framework Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits (PIP) by WHO, which applies to influenza viruses with pandemic potential. PIP thus encourages the dissemination of virus samples and research results; it also provides for transparency in virus sequence tracing by contributing laboratories, and it embeds norms which discourage seeking intellectual property rights (but this is not legally binding). As PIP is recently enacted, it has yet to be tested in a declared pandemic, and it is not clear that the current H7N9 outbreaks will amplify into an official pandemic.
One other aspect of H7N9 is notable at present: the virus genetic sequence has two mutations linked to increased human-to-human transmission which were identified in the H5N1 research papers that were subject to debate in late 2011 as possible sources of dual-use information (the debate centered on whether the data should be published). For background, see here and here. The question: what does the observation of these mutations mean for the viability (and scientific merit) of the earlier dual-use experiments? Has their utility been increased as a result of what is being learned about H7N9?