Relaxation in IP Laws: A Humanistic as well as a Rational Approach
“That’s an idea which may make some people smile, but the only means of righting a plague is, common decency.”
Albert Camus (The Plague)
This isn’t the first time the world is fighting against a widespread extreme medical situation, for instance during 1995-2008, North America and Europe- there was a conflict over breast cancer genes and patents and then in 2009, there was spread of H1N1 pandemic, which had led to the debate over whether intellectual property act as a hindrance in access to treatment. This time too, nations are debating over the same. To overcome tough times like these, people need to identify the barriers causing hindrance in fighting off the source of difficulty, which in our case is this Coronavirus. In the present situation, Intellectual property (IP) laws have been identified as a huge barrier. As we know, to fight off this pandemic, there is a huge need for medicines to be duplicated but exclusivity among researchers is proving to be a hindrance in medicines being universally accessible. Therefore, the issue arises that even if in future, we are fortunate enough to be able to find a cure, how many of us would really be considered to be blessed?
It was even discussed at the 73rd World Health Assembly of World Health Organization that this pandemic poses unprecedented challenges and the countries called for “equitable access” and “fair distribution of all essential technologies and products to fight off the virus”.[i] Preceding this assembly by WHO, United Nations General Assembly had made a resolution and G20 countries had also held a virtual meeting highlighting the same. However, none of the meetings talked about how to go about it.
Various countries, companies and International bodies after having realised that IP rights can actually be a huge hindrance, have actually taken steps in favour of easing IP laws. Countries like Israel, Germany, Chile, Canada, France and Germany have enacted laws in favour of compulsory licensing. Compulsory licensing is when a “government permits 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”[ii]. Many countries have the authorization to grant a compulsory license in exceptional situations like government services for emergency, public non-commercial use and national defence, wherein they don’t have to comply with certain conditions. And once granted, the license should not be exclusive. If the circumstances because of which grant of compulsory license is needed, ceases to exist then latter should be suspended as well. Unlike other nations, India doesn’t have to face too many difficulties in this regard as compulsory licensing has always been existed here. In India, The Patents Act, 1970 deals with compulsory licensing and Article 31 of the TRIPS agreement [iii]also provides for the same.
HOW COMPANIES HAVE CONTRIBUTED IN THIS FIGHT AGAINST THE VIRUS?
This pandemic has basically changed this world so much that now IPR holders instead of following a capitalist approach have actually started to allow third parties to use their IPRs, for the public interest.
A few instances are mentioned as follows:
1) ‘Abbvie’, a biopharmaceutical company, surrendered its IP rights after ‘Compulsory licence’ was issued by Israel that permits a country to use the drug without having to take permission of patent holder.
2) ‘Roche’, that’s a Swiss multinational healthcare company agreed to share information about its testing liquid being criticized by the government of causing shortage of materials ultimately, decreasing testing capabilities of nation.
3) ‘Gilead Sciences’, which is a research based biopharmaceutical company, has also announced that it won’t be filing any patent rights for covid-19 related research and manufacturing.
Even though, companies have realised their social responsibility and more than that, they have realised that to fight off this virus we need to stand united; still there have been incidents wherein concern regarding ‘equitable access’ have arisen, for instance, the U.S. reportedly had tried to convince a German vaccine maker to move its research to U.S. On disclosure of this particular incident, Germany had raised concerns over how wealthier nations could try to be on top of list of recipients of drugs and vaccines against covid-19. Another similar incident had happened, wherein Chief executive officer of a company named ‘Sanofi’ disclosed that the U.S. would be getting priority access.
Therefore, I would again like to refer to the quote I have used in the beginning of this blog, it simply says, we can only succeed if we work decently and during this tough time, the only decency we can show is by behaving as a human being first. We need to put public health over mere profits.
I have another example to simply explain how solidarity is essential during this time, For all those who have watched the movie ‘Lord of the rings: Fellowship of the ring’ or have even heard of the movie and even if you have no idea about it, it is totally alright because the moral of the story (in our case, movie!) is basically, to go through tough times and succeed, people need to stand in solidarity, no matter how different they are.
It is well known that IP laws need to be reformed in order to fight off covid-19 but it is easier said than done as several concerns have been raised regarding the same. It is being said that there are chances that there might be companies who would want to take advantage of shared IP rights once the pandemic is over. This problem can be managed through compulsory licensing. It is actually one method through which business can earn profit and help the society as well, as once the pandemic gets over, license terms would automatically prevent third party users to stop using the IP and ultimately, the royalties could be charged if the company wants to do so.
Another concern has been regarding protection of investors and inventors. It has been said that there are ways through which the same can still be protected; firstly, through Voluntary licensing facilitated by government, wherein, instead of invoking compulsory licence, the government negotiates with the patent holder for considerably lower prices. Secondly, through pairing up of IP and non-IP incentives, for example, one non-IP incentive that could be advance purchase commitment, wherein, a government offers to guaranteed purchase for the IP. Thirdly, through public-private partnerships; in time of this pandemic, joint ownerships can prove to be beneficial, it solves a lot of problems. Companies are actually looking for partners instead of blocking all the competitors. For instance, BioNTech and Pfizer have joined hands to develop Covid-19 vaccine. Sharing of patented technology can provide the impetus for acceleration of development process.
To avoid delays in researching for the cure, Crisis-Critical Patent pools are actually an amazing approach. WHO had previously researched the possibility of patent tools during the time of severe acute respiratory syndrome (SARA) epidemic in 2002 and SAR-CoV-1 in 2003. A patent tool is extremely advantageous as it can enable rights of use much more efficient and legally secure way; reason being, these are used on an international level, thus, enabling cross-fertilization of inventions.
Concluding, right now the humanitarian approach is the only rational approach to fight off this virus. Standing united, sharing resources, setting our financial considerations aside and being in favour of our moral concerns, is the best we can do right now. Certainly, IP laws are crucial as they induce development of drugs/medicines but still, those need to be reformed to meet broad public interest especially at times like this. On a happier note, we already have smaller manufacturers and larger firms like the American Inovio Pharmaceuticals Inc. and the German Richter-Helm Biologics working jointly, as well as larger firms with each other, as Sanofi SA and GlaxoSmithKline Plc. Private Entities and universities have also come together for example, the Pune-based Serum Institute of India and the University of Oxford are co-developing a vaccine.
Therefore, to fight off this pandemic, we need to put a full stop on our capitalistic desires, put the public health on top of priority list and ultimately, work for health care treatment being universally accessible.
[i] Liela Mead Countries Commit to Work Together to Combat COVID-19 at World Health Assembly, https://sdg.iisd.org/news/countries-commit-to-work-together-to-combat-covid-19-at-world-health-assembly/.[ii] Compulsory Licensing, https://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm.
[iii] Art. 31, TRIPS agreement, https://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm.
ABOUT THE AUTHOR This blog has been authored by Muskaan Koul who is a 3rd Year B.A., LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Patiala.