• Ipsa Raj

Impact of COVID 19 on IPR

Updated: May 31, 2020

The effects of the COVID-19 pandemic have been felt worldwide and across all business sectors. The pandemic is also leaving an impact on the protection of existing intellectual property rights (‘IPRs’) and on IPRs in the process of acquiring protection.

Whilst in normal circumstances IPR rightholders are granted protection over their intellectual property (‘IP’) against third-party use, the pandemic has created an unprecedented situation whereby IPR holders may be forced, even temporarily, to allow third-parties to use their IPRs, example patents or designs, for the public interest.

International media reported that politicians in the UK and Netherlands accused Swiss multinational Roche, world's leading diagnostic kit maker, of withholding the chemical formulae for a reagent, a buffer used in its polymerase chain reaction-based test for COVID-19. The politicians blamed Roche's inability to supply sufficient volumes of this reagent as one of the reasons for delay in the scaling up coronavirus tests in their respective countries. Apparently, the politicians wanted Roche to share the chemical formulae to allow local firms to mass produce the reagent.

Roche was well within its legal rights to not share its IPR-protected formulae, and the ventilator maker Intersurgical must have seen its IPR violated. However, the fact remains that the problem arose in the first place due to the heavy demand, making timely supply of essential items in adequate quantity, a challenge for the IPR holders and posed a bigger threat to governments in a public health emergency.

Incidentally, two of the medicines, Fevipriavir and Remidisivir, which are undergoing clinical trials to see if they can be repurposed for COVID-19, are patent protected in India. Unless the patent holders insist upon its IP rights, access to these medicines should not be a concern for India as the domestic generic industry has proven its ability to produce low cost medicines in short time. But several countries are not depending on the magnanimity of IP holders. Some have already gone ahead and issued orders to facilitate compulsory licenses for any IP protected products for the use of COVID-19. Chile is one, Israel is another. Even Germany is known to have amended its Patent Act to facilitate compulsory licensing.

WHO Protocol

The World Health Organisation's (WHO) coronavirus treatment protocol has a lengthy list of products that are needed at different stages of the disease outbreak. World Trade Organisation (WTO) estimates the size of global trade of COVID-19 related medicines and medical products to be $597 billion. While patents on medicines are rather well known and better tracked, the same may not be true for most other products, the IPR status of many of which are not even clear.

Carlos Correa, Executive Director of developing world centric think tank South Centre says global organisations like WHO, WTO or World Intellectual Property Organisation (WIPO) should support WTO member countries that invoke the 'security exception' contained in Article 73 of the Agreement on Trade-related Intellectual Property Rights (TRIPS Agreement), to take 'actions it considers necessary for the protection of its essential security interests' in the wake of COVID-19 threat. "The use of this exception will be fully justified to procure medical products and devices or to use the technologies to manufacture them as necessary to address the current health emergency," he points out.

In fact, in an open letter to the heads of WHO, WTO and WIPO, Correa said that in their official capacities, they should "support developing and other countries, as they may need, to make use of Article 73(b) of the TRIPS Agreement to suspend the enforcement of any intellectual property right (including patents, designs and trade secrets) that may pose an obstacle to the procurement or local manufacturing of the products and devices necessary to protect their populations".

Suspension of IP rights

Medical devices and medicinal products are generally protected via patents giving companies the legal right to inhibit third-party use. Patent protection allows creators to secure a quasi-monopoly, at least for several years, over their own unique inventions, after having invested time and money into the creation of the IP.

On the other hand, the COVID-19 crisis created the need to produce essential equipment and medical supplies regardless of any possible backstop. Indeed, there is a growing need to be able to manufacture essential medical devices such as masks, ventilators and other personal protective equipment.

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