By Pranav. R, SASTRA University
Introduction
The whole world is fighting against the COVID-19 pandemic which has taken a huge toll on life. All countries are in a race to create a COVID -19 vaccine and bring an end to the life-threatening situation prevailing throughout the world. However, success is not just about finding the cure but depends on how far it could reach in the people’s hands. It is however believed that Intellectual Property could be a barrier in accessing the COVID-19 vaccine. This article deals with how intellectual property rights could not be a threat in accessing the vaccine and the solutions within the intellectual property law to solve the same.
Intellectual property- A right against the whole world
Intellectual property rights are a reward for the innovation created by the human mind. It is yet a monopoly status given to an individual who has created something new and which does not exist. A patent system is a contract between the inventor and authority whereby the inventor gets exclusive rights for a period of 20 years in return for disclosing full details of the invention. The main purpose of the patent system is to encourage innovation which eventually results in technological development. In this aspect, if any person or company, or lab has invented the vaccine to cure COVID-19 the very first motive of the company of exploiting it commercially will be facilitated by availing patent rights. The patent right gives an exclusive right to the lab to manufacture and sell and prevents any other person from manufacturing the same. The patent right vested by the company gives monopoly power to fix high rates for the vaccine and there might also be chances where the company could not supply to meet the demand of the vaccine. These are all the probable risks that might threaten survival again even after the discovery of the vaccine.
Foreseeing these problems the lawmakers have created certain checks and balances within the act itself to address such problems. Public welfare is always kept on a higher pedestal than the welfare of one individual. Though the intellectual property is an absolute right conferred upon an individual it is, however, subject to certain restrictions. One such restriction is public welfare.
Solution under the Indian Patent Act 1970
Compulsory Licensing
Compulsory licenses are permissions that are given to a third party by the Controller General of Patents to make, use or sell a product or use a process that has been patented to make a certain product, without the need of the authorization of the owner of the patent. Chapter XVI of the Indian Patent Act 1970 lays down the various guidelines for compulsory licensing. Under section 84 of the Act, any person can request the Controller for compulsory licensing of a particular patent in case of emergency or for a reason for public welfare. E.g. Vaccine for malaria can be used in the preparation of a COVID-19 vaccine where the patent for malaria vaccine could be licensed by the controller by an application made under Section 84.
Section 92 of the Patent Act empowers the controller to suo moto license the patent to the government without the approval of the patentee in case of a notification by the government through its official gazette that a situation of emergency prevails. The right to be heard of the patentee can be waived off by the Controller during times of national emergency or any circumstance of extreme emergency. Thus the government of India can use this particular provision during COVID-19 to break the barrier of accessibility of the COVID-19 vaccine or any other medical equipment.
The central government also has the power of U/S 66 to revoke a patent if it contravenes the public welfare or prejudicial to the public interest. The central government could adopt this strategy against a company that uses the patent to its advantage and exploits the people by selling the vaccine at such high prices which has the probability of creating an inflationary effect on the economy.
The wise option is to invoke Section 92 of the Patent Act the government can avail the license and even the patentee is eligible for remuneration for the copies made using the patent which serves as a win-win situation to both the government and the patent holder.
Solution under the TRIPS Agreement
Under the TRIPS Agreement, several other IP-related measures can be taken by countries. Under Article 73(b) of the TRIPS Agreement, a country can take any action which it considers necessary for the protection of its essential security interests, taken in the time of war or other emergencies in international relations. Thus, in furtherance of its health security interests, a country can take measures such as suspending the grant of patent protection and grant indemnity against enforcement actions. Following Article 6 of the TRIPS Agreement, a country can also undertake parallel importation of needed products, including from countries where they are produced under compulsory licenses.
Conclusion
The only industry which is not hit by the pandemic is the pharmaceutical companies. The competition commission from the start of the pandemic is having a close watch on all the pharmaceutical companies so that they don’t enjoy a dominant position or enter into anti-competitive agreements that would create price hikes or disrupt the supply chain. Compulsory licensing is yet again another boon to make the vaccines and other essential equipment available and accessible to all people. In the eyes of law, no statutory right granted to a person is an absolute right and is subject to restrictions. Intellectual Property law through grants an individual a right in remit has its checks and balances to that right conferred disguised in the form of public welfare. Thus intellectual property is another law that has its part to play in the pandemic to reduce the toll on death by making the vaccine accessible to all and is not restricted through the grant of patent.