COVID19: The Role of IPR during the Pandemic

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INTRODUCTION

Since the first detected case of novel corona virus back in November 2019[1], The pandemic has spread wide across the world. This has led to a crisis in terms of medical treatments to cure this disease. There are no established treatment methods or vaccines which could possibly lead to its eradication. The pandemic has created a global medical emergency where hospitals are bombarded with patients suffering from this virus. There have been instances of lack of room for patients in the hospital due to the exhausting patient loads which leads to over spending of medical resources.[2]

This crisis has led to finding a proper cure for the disease. Various Guidelines have been generated by World Health Organisation in order to prevent the spread of this disease such as wearing of masks in the public gathering, maintaining social distance etc.[3] However, to prevent the spread of this virus a proper vaccine is the need of the hour. There are several vaccines which have passed their clinical trials and are now available to be used.[4]

However, before developing the vaccines there were a plenty of questions regarding the method used to make such vaccines and to what extent does Intellectual Property Rights play a part. Development of vaccines requires various usage of patent methods which are protected under the patent laws of different countries. It is important to understand the potential conflict that a patent owner may have with the vaccine developers or various medical units which can lead to litigation. It is also important to understand how a patent can be easily available to be used a amidst a global health emergency without jeopardizing the invention of the patent owner.

Further, it is also important to understand how IP rights in the future get affected due to such medical emergencies.

IPR: A NECESSARY TOOL TO COMBAT COVID-19

The role of IPR is to protect a creator’s original work.[5] During the time of a global pandemic such inventions can be of great use for the development of a medically certified cure. However, IPR can act as a barrier for general usage of these invention as these are protected in order to prevent its infringement. In order to find a conducive medical remedy for a global pandemic the medical industry has to bypass the patent laws which protect the methods through which a certain medical cure can be obtained.

Patent laws gives protection to the patent owner over the process of his invention. The only way that a patent can be used other than the owner is by licensing.[6] However, such method of third party use of a patent cannot be useful in a scenario of a global pandemic specially where multiple medical companies are in a race to develop vaccines. IPR protection act as a barrier towards developing of medical products which can prevent the spread of a pandemic. Traditional path of licensing patents would cause inordinate delay in manufacturing of these products.

Therefore, it is important that a uniform mechanism is put into place in order to prevent the infringement of the owners right as well as the usage of these patents in manufacturing is smoothened.

In order to smoothen the usage of IPR, governments across the globe have opted to enact special legislations. For instance, in Malta suspension of IPR is possible under the patent and design Act, keeping in mind the national security and public safety.[7] Similarly, in Britain under Crown use rules, the government can suspend the right of the patent holder to address a global crisis.[8]

Such measures which are implemented by the government is know as compulsory licensing. Such methods though do not bring voluntary exchange of information and are rather coerced. It is important to identify methods which bring voluntary cooperation between the IP holders and the third party.

EFFECTIVE WAYS OF PATENTING IN A GLOBAL PANDEMIC

It is important to identify as to how patenting in global pandemic can benefit both the patent owner and the medical industry. One of the main methods in addressing this conflict can be of establishing a patent pool. Creation of patent pool ensures quick access of Patents. A patent pool can be managed by central agency which handles various aspects of licensing of patent such as royalty rates of a particular patent.[9] This method ensures protection of the right of the patent holder. It also ensures that manufactures gain quick access to these patents through which they can rapidly develop medical products.

 pledge is also a viable method through which patents can be licensed. There are different kind of pledges. First one consists of voluntary pledge under which organizations freely license their IPR.[10] Few Organisation license their IPR on the condition of having a sperate agreement with the patent holder.[11] Examples of companies which have resorted to open pledge are Amazon, HP, Facebook etc.[12] Open pledge not only provides benefits for manufacturers but also helps to enhance the reputation of a company which grant these licenses for free in a global crisis.

Pledging helps a patent holder to have control over his invention. Pledging ensures that an agreement between the patentholder and the third party is for a limited time period, which means a pledge can be sustained till the end of the pandemic and for some duration after it.[13] Pledge gives a viable option to the patent holder to also suspend the patent agreement for its infringement. Pledge is also commercially viable for patent holders who can extract royalty rates for the duration of the pledge without their right being compromised.

The pandemic has helped to identify the role of IPR. It is important to establish a road map for the future to look at Intellectual Property as a solution rather than a problem for a global crisis.

IP PROTECTION: THE WAY FORWARD

Intellectual Property Rights play a huge part in building resources for a nation, specially in the field of medics. Initiatives such as the open pledge where several Organisation consisting of companies, universities etc have forged a remarkable alliance in order to develop medical logistics. These changes in itself in the IP domain demands a new outlook in order to further, tackle such global crisis in the future.

During this period various forms of partnerships have been a catalyst for a steady progress of developing a vaccine. Smaller manufacturers are working with bigger firms in an open system of negotiations.[14] Public-Private partnerships have also flourished during this period as governments across the globe are working in tandem with vaccine developers.[15]

These developments clearly depict that there is a lot of scope of innovative IP practices which can be resorted to on the future to find a plausible solution to a global question. In future we can witness compulsory licensing being replaced by negotiation between the patent holder and the government. Where there will be a reasonable price paid for the licensing to the patent owner which would lead to the usage of an IP more efficiently with proper knowledge being shared as well as royalty rates would also be just reasonably paid to the patent holder.[16]

This would mean a patent holder’s right would be secured and he would be able to control the ebbs and flows of his patent. There are also debates about relinquishing the IP rights during such crisis as this would allow manufacturers to develop the vaccine in a cost-effective manner.[17]India for instance has categorically asked for waiver of IPR, in order to tackle the existing crisis.[18]

The TRIPS agreement is considered to be a viable mechanism in order to deal with IP rights. However, in a global pandemic stringent barriers of IP protection are detrimental for manufacturers. Further, TRIPS offers very limited solutions to a global issue.[19]

Creating any sort of hindrance during a global crisis can slowdown the process of responsive mechanism. It can create unnecessary divide amongst stakeholders consisting of international institutions, companies, patent holders etc. The ideal step is to act through cooperation. The Doha Declaration for instances incapsulates that, steps to be taken to protect health and welfare[20]. This is also on the lines of the TRIPS Agreement.[21]

It is not a viable option to completely wave off IP Protection. The way forward is to make the regime less stringent. Which requires dialogue between the IP holders and other stakeholders. During the course of this pandemic, it is well established that methods of open pledge, patent pool and the Public-Private Partnerships are a viable option. However, a well-defined mechanism in the International regime is the need of the hour. International Regime such as TRIPS can add an exception clause where IP holders through reasonable negotiations can license out their patent.

Well defined legislations at the national level shall also help in creating a better response mechanism to deal with such crisis. A National Health Emergency Act can be enacted which clearly defines rights of an IP holder as well as the criteria of reasonable negotiations. The Act shall also, specify the time period for which such reasonable licensing is applicable and shall also enshrine provisions which assist the development of medical logistics. Further, in order to prevent any infringement of IP rights a separate tribunal can deal with such special cases without hindering the process of basic manufacturing. Further, the other provisions can be embedded as the native government deems fit.


[1] Jeanne Bryner, 1st known case of coronavirus traced back to November in China, available athttps://www.livescience.com/first-case-coronavirus-found.html (Last visited on February 7,2021)

[2] Daniel A Donoho, Hospital Capacity and Operations in the Coronavirus Disease 2019 (COVID-19) Pandemic—Planning for the Nth Patient, available at https://jamanetwork.com/channels/health-forum/fullarticle/2763353 (Last Visited on February 7, 2021)

[3] Coronavirus disease (COVID-19) advice for public, available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public?gclid=Cj0KCQiAvP6ABhCjARIsAH37rbQ95R5PcWeCR4t7_b9SR16_qYGmOpaecJQpxMvmNEVEM6Pk-d_AOe0aAh5KEALw_wcB (Last Visited on February 7, 2021)

[4] Sukriti Dwivedi, 57 Lakh Get Coronavirus Vaccine Shots In India, 3rd Highest After US, UK, available at https://www.ndtv.com/india-news/coronavirus-57-lakh-get-covid-19-vaccine-shots-in-india-3rd-highest-after-us-uk-2364980 (Last visited on February 7, 2021)

[5] The Different Types of IP Protection and Why They are Important, available at https://www.inquartik.com/inq-intellectual-property-rights/#:~:text=Intellectual%20property%20rights%20are%20legal,scientific%20developments%2C%20and%20so%20on. (Last Visited on February 8, 2021)

[6] ibid

[7] Terence Casar, Bernice saliba and Emma Marie Sammut, COVID-19 And its effects on Intellectual Property, available at https://www.mondaq.com/patent/992968/covid-19-and-its-effects-on-intellectual-property#:~:text=The%20effects%20of%20the%20COVID,the%20process%20of%20acquiring%20protection. (Last Visited on February 8, 2021)

[8] ibid

[9] Prathiba M. Singh, needed: a pandemic Patent Pool, available at https://www.thehindu.com/opinion/lead/needed-a-pandemic-patent-pool/article31475628.ece (Last visited on February 8, 2021)

[10] Contreras, J.L., Eisen, M., Ganz, A. et al. Pledging intellectual property for COVID-19 available at. Nat Biotechnology 38, 1146–1149 (2020). https://doi.org/10.1038/s41587-020-0682-1 (Last visited on February 8, 2021)

[11] ibid

[12] Mitthatmeer Kaur, Role of Intellectual Property Amid Covid-19 Pandemic, available athttps://ttconsultants.com/role-of-intellectual-property-amid-covid-19-pandemic/ (Last visited on February 8, 2021)

[13] Supra note 5

[14] Anjula Gurtoo, Will the COVID-19, Pandemic Change the IP Domain, available at https://science.thewire.in/health/covid-19-pandemic-research-collaborations-intellectual-property/ (Last visited on February 9, 2021)

[15] ibid

[16] ibid

[17] Arnab Acharya, OPINION: the debate around Intellectual Property Rights and the COVID- 19 Vaccine, available at https://www.devex.com/news/opinion-the-debate-around-intellectual-property-rights-and-the-covid-19-vaccine-97609 (Last Visited on February 9, 2021)

[18] Joe C Mathew, Get rid of intellectual property rights on COVID-19 products, available at https://www.businesstoday.in/current/economy-politics/get-rid-of-intellectual-property-rights-on-covid-19-products-india-tells-wto/story/423067.html (Last visited on February 9, 2021)

[19] ibid

[20] Supra note 9

[21] ibid

Author: Kartikey Mishra

Editor: Kanishka VaishSenior Editor, LexLife India.

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