Patent Protection and Access to COVID-19 Medical Products in Develo** Countries

Abstract

When new vaccines and other medical products for COVID-19 are developed, it is of critical importance to ensure that these are affordable and accessible to the people of all the countries. If the new medical products are patented, then the patentees will have the right to prevent others from entering the market for a prolonged period of time. The resultant monopoly markets may lead to high prices. Experience shows that the most effective way of ensuring lower prices is generic competition. Generic competition is possible when patent protection expires, or when patents can be prevented or denied or suspended. When product patents are granted, competition is possible when the patentees give voluntary licences or when generic companies get compulsory licences. Voluntary licensing has attracted huge attention in the context of the proposal of Costa Rica to create a voluntary pool mechanism for medical products and technologies. WHO and Costa Rica have followed it up through a Solidarity Call emphasizing the need for voluntary licensing on non-exclusive basis to Medicines Patent Pool (MPP). The call has been endorsed by some WHO member countries but not by the more influential developed countries (such as the US and Germany) and develo** countries (such as India and China). The paper provides a critical review of the voluntary licensing mechanisms that have been used and argues that voluntary initiatives must be supplemented by using the flexibilities which the TRIPS agreement of WTO provide including compulsory licensing and using Article 73(b) of the TRIPS agreement to suspend patent rights for security reasons.

The paper was written in late June 2021 and hence does not contain references to later events.