In the global economy driven by technological advances, Intellectual property plays a vital role in providing a conducive business and trade environment. A Patent is a form of legal right granted to the owner or inventor of certain products against third parties to prevent them from manufacturing, selling, using or making for certain periods of time. Under global intellectual property rights, an inventor or owner has the sole responsibility of manufacturing and retailing of newly invented drugs. In most countries, the term of standard patent right is for 20 years. The most effective way to fight this Covid-19 pandemic is through the invention of a vaccine. The social need for distribution of vaccines worldwide may take a backseat when the IPR’s comes in conflict with social needs.
The hurdles for COVID-19 Vaccine:
To develop a vaccine, Governments, Non-governmental organisations, Universities and Pharmaceutical companies have started collaborating worldwide. The World Health Organization and the European Union are exploring ways to make the vaccine available worldwide. The IP hurdles faced by Covid-19 vaccine will be in the form of a barrier of access. IP rights are mostly vested with the private funders and to overcome the cost price they can fix rates which can be a burden on developing countries.
The concern of fairness and equality in vaccine distribution was also seen during the 2009 H1N1 pandemic, where developed countries placed large advance orders and almost bought all the vaccine companies. Thus, the developed countries secured themselves with a huge supply of H1N1 vaccines. When developing countries and the World Health Organization came to know about this, they entered into talks with manufactures and developed countries, to provide supply for Low-Income Countries. But the end result was not very satisfactory.
The infrastructure for drug development mostly lies with the high-income countries and if they develop any vaccine there will be a chance that low and middle-income countries may not be able to afford it. The free market system may dictate the value of patented products. Due to high demand, there will be a surge in price which will make it unavailable for low income and developing countries. Government may prioritize its citizens by signing pre-purchase agreements and banning the exports of the vaccines. This may prove to be detrimental as other countries will suffer.
Measures to curb IP hurdles for COVID-19 Vaccine Worldwide:
Several Universities and Companies have signed the Open Covid-19 pledge to encourage the development of vaccines to find a solution to this pandemic. They have pledged to develop and deploy technologies on a massive scale by curbing the hurdles of Intellectual Property Rights. There has been international cooperation in sharing medicines.
To make the COVID-19 vaccine available to all, many countries have encouraged compulsory licensing and an open patent pool. Several right holders like AbbVie have pledged to not exclude others from using their invention. They have announced that they will not use their patent rights on Lopinavir, an antiviral drug. Similarly, the Serum Institute of India has announced that it will not file patent rights on the researching and manufacturing of Covid-19 vaccine. Gilead Sciences also announced that it will provide its entire 1.5 million dose supply of Remdesivir, at no cost to patients with most severe symptoms.
Many countries have started laying a legislative framework for compulsory licensing of the vaccine. Compulsory Licensing is when the government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patent-protected invention itself. These rights not only apply to new drugs but also to existing medications whose patents have been extended because pharmaceutical companies made minor changes to formulations or discovered a new use for the medication. The countries that have adopted this are Chile, Israel, Ecuador, Germany, Canada and France.
There is a growing need to balance Intellectual property interests and the public good for fighting this pandemic. An advanced market commitment mechanism can be adopted where international organizations commit to purchase specific amounts of drugs to distribute in Low to Middle-Income Countries at the asking price. There is a need for compulsory licensing in more and more countries so that the vaccine production does not get entangled in the web of Intellectual property rights. Providing Universal Patent rights can also be a way to fight the IP hurdles around COVID-19 vaccine.
The World Health Organization and World Trade Organization can take exceptions to Article 73 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement to suspend the enforcement of any Intellectual Property Rights that may pose as an exception to make the vaccine available worldwide. Article 73 of the TRIPS agreement allows members from taking any action which it considers necessary for the protection of essential security interests. The use of this exception will be fully justified if it is to procure medical products and devices or to use the technologies or manufacture them as necessary to address the current health emergency.
It has now become very important to look at our IP laws from the perspective of public health as modern laws are not equipped to deal with a global pandemic. Immediate action is required to halt the COVID-19 pandemic and treat those affected. The most important need right now is the availability of the COVID-19 vaccine in fair, reasonable and non-discriminatory terms.
- Arnab Acharya, Opinion:The Debate around Intellectual property rights and the COVID-19, available at https://www.devex.com/news/opinion-the-debate-around-intellectual-property-rights-and-the-covid-19-vaccine-97609.
- The Wire, Will the COVID-19 Pandemic Change the IP Domain for the Better, available at: https://science.thewire.in/health/covid-19-pandemic-research-collaborations-intellectual-property/.
- Chinh.H.Pahm, The Race for a COVID-19 Vaccine is On: Key Factors May Impact Patent Protection, National Law Review, Volume X, Number 202, July 20, 2020.
- Joe. C. Mathew, Coronavirus: Will intellectual property be a hurdle in India’s fight against COVID-19, available at: https://www.businesstoday.in/latest/trends/coronavirus-will-intellectual-property-be-a-hurdle-in-indias-fight-against-covid-19/story/400200.html
- Anjula Gurtool and Rahul Patil, When a Covid-19 vaccine is discovered, will it be freely available and be affordable to all?, available at: https://scroll.in/article/966877/when-a-covid-19-vaccine-is-discovered-will-it-be-freely-available-and-be-affordable-to-all.
- Stepehen Ezell and Philip Stevens, Don’t Let Life Sciences Innovation Become Another Coronavirus Casualty, available at: https://www.ipwatchdog.com/2020/04/18/dont-let-life-sciences-innovation-become-another-coronavirus-casualty/id=120695/.
- Andrew Green, COVID-19: Countries race to strengthen compulsory licensing legislation, available at: https://www.devex.com/news/covid-19-countries-race-to-strengthen-compulsory-licensing-legislation-97595