COVID-19 outbreak was declared a Public Health Emergency of International Concern by the World Health Organisation (WHO) on January 30, 2020. Barring a handful of countries, COVID-19 has spread across the globe carrying along deadly infection and health and economic adversities. This is indeed a tough time for the world and the number of cases and deaths may climb even higher as per the Director-General of the WHO1.
In India, Central and State Governments are doing every bit to fight the adversities of this pandemic. India's efforts are being praised for not just protecting its people but also for helping other nations by providing anti-malarial drug hydroxychloroquine (HCQ), which has gained vast popularity as a measure to fight against COVID-19 outbreak. A possible and pertinent question arises here is - Can present resources including medicines/drugs available to mankind be used or remodelled against the COVID-19 pandemic? If yes, then next question is, are people free to use such resources? It is now evident that none of our current resources can eliminate this disease or act as a preventive measure, but yes, a lot has been developed by the world's researchers till date that can help reduce corona's severity in infected people. But to a general dismay, many of the same are protected by the Intellectual Property Rights preventing its widespread manufacture and use.
At this time of hardship, world organisations and countries should not be afraid of using the powers vested in them by virtue of provisions written in their Intellectual Property Rights Acts and save lives of their people. Many Countries like Chile, Israel, Germany, Canada and France have proactively worked on it and eased their laws, even enacted new laws to favour Compulsory Licenses to be granted in order to effectively use, produce and sell any medicine or vaccine protected by IPR in that country.
India, fortunately has certain provisions in its Patent Acts which allows the Central Government to take over any patent that can be of use in a state of National emergency or in circumstances of extreme urgency under Section 100 and 102 of the Patents Act, 1970. The provision of compulsory license can also be availed if a potential IP is of use in a state of public health crisis or against any epidemic under Section 92 of the Patents Act, 1970.
However, in my view, the interests of the researchers and research organisations should also be safeguarded. Granting compulsory licenses for a researcher's IP, to help a country, curbs the zeal with which the researcher has made that invention. World organisations and governments, therefore, should ensure that such policies will be reversed when the state of national emergency ends and let the researcher enjoy the IP rights or benefits they deserve.
Another important contribution of IP regimes in fight against COVID-19 is Patent Pools. As per WIPO, patent pool can be defined as an agreement between two or more patent owners to license one or more of their patents to one another or to third parties. Often, patent pools are associated with complex
technologies that require complementary patents in order to provide efficient technical solutions2. In this tough time of COVID-19 pandemic, many patent owners have come together to pool their patents so that they can be used freely or at a consolidated lower prices, by the other patent owners or to an agreed third party for greater good of humanity.
This voluntary approach not only helps increase availability of the patented products and processes for making the same but also counteracts patent thickets. Some examples of patent pools include:
- World Health Organization's Director-General, on being motivated by Costa Rican officials' concern that the COVID-19 drugs will not be available to poor people, has authorised the voluntary sharing of patent rights and pooling of research data to help develop COVID-19 drugs, vaccines and ensure their greater outreach.
- The Open COVID Pledge3- Pledge to make intellectual property of supporters to be available free of charge for use in ending the COVID-19 pandemic and minimizing the impact of the disease.
- Open-access letter from Chief Science Advisor or Equivalents representing Australia, Brazil, Canada, Germany, India, Italy, Japan, New Zealand, Republic of Korea, Singapore, United Kingdom and United States of America4- To support the ongoing public health emergency response efforts, these countries urge publishers to voluntarily agree to make their COVID-19 and coronavirus related publications, and the available data supporting them, immediately accessible in PubMed Central and other appropriate public repositories, such as the WHO's COVID-19 data base, in both human and machine-readable formats to allow for full text and data mining using artificial intelligence with rights accorded for research re-use and secondary analysis.
As discussed above, the IP regimes have come up in their own scientific ways to come together with a hope to eradicate COVID-19 pandemic from the world. We all hope that the shared information could be put to the best use and generate a solution to this pandemic.
1. WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020. Available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020
2. PATENT POOLS AND ANTITRUST – A COMPARATIVE ANALYSIS. Available at: https://www.wipo.int/export/sites/www/ip-competition/en/studies/patent_pools_report.pdf
3. The Open COVID Pledge (April 7, 2020) https://opencovidpledge.org/
4. Open-access letter from CSAs (March 13, 2020) https://cdn.geekwire.com/wp-content/uploads/2020/03/COVID19-Open-Access-Letter-from-CSAs.Equivalents.pdf
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