Positioning Intellectual Property Rights (IPR) for vaccine-diplomacy

The Covid-19 pandemic is shifting the bedrock-principles of medical battlegrounds from the remotest villages to the skyrocketing cities by warranting scientific communities to create a programmed path for global ties. 

Regarding cross-border innovation systems, this pandemic calls for the creation of rock-solid action plans by actors across sectors to mobilise resources, and develop and manufacture crisis-critical Products efficiently. Moreover, this pandemic has had significant impacts on the protection of existing IPR as well as on the process of acquiring new protections. 

Amongst the myriad of challenges pertaining to this pandemic, innovators and manufacturing groups find themselves unexpectedly cementing new partnerships, even with those that have been competitors for ages. 

Additionally, despite the nationalistic tones of many leaders, an open access protocol adopted by researchers is contributing to a significant portion of the coronavirus solution available. It is thus quite apparent that adequate access to IPR is more important than ever to curb this rampaging pandemic. 

So, the question of whether Covid-19 vaccine development should focus on patents or the patients' needs requires a mutual answer: both. 

Generally, medical devices/medicaments are protected via patents by giving companies the legal right to bar third-party use. However, Covid-19 created the need to produce essential equipment and medical supplies without significant backstops, with the growing need to manufacture essential medical apparatuses such as masks, ventilators, and other personal protective equipment. 

Given the facts, the pertinent question that arises is - can existing resources including the medicines/drugs that are available to us be used or reformulated against the Covid-19 pandemic? 

If the answer is yes, then a follow-up question can be raised about whether people are free to use such resources.

From an ethical perspective, companies and countries should not be afraid to use the powers vested in them by virtue of the provisions written in their respective IPR Acts that can save the lives of their people.  

Reportedly, many countries are proactively working on it and easing their laws while enacting new laws to favour compulsory licenses to be granted to effectively use, produce and sell any medicine or vaccine protected by IPR in that particular country. 

However, while doing so, the interests of the researchers and research organisations should also be safeguarded. It must be kept in mind that granting compulsory licenses for a researcher's IP to help a country, curbs the zeal with which the researcher has made that invention. So, companies and countries, therefore, should make sure that such policies are reversed once the state of emergency ends and let the researcher enjoy the IP rights or benefits they deserve.  

We are also seeing international cooperation galvanizing support measures on sharing medicines. Several governments have reportedly stepped into the patent system with discussions of compulsory licensing and creating public "Patent Pools". 

As per the WIPO, a 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 solutions. 

In this critical time, numerous patent owners have come together to pool their patents so they can be used without restrictions, or at lower prices by the other patent owners, or by approved third parties for the greater good of humanity. 

As expected, the nature of such collaborations is changing from a stiff, negotiated system to a more flexible, liberal system. As a matter of fact, we have already witnessed smaller manufacturers and larger firms – like the American Inovio Pharmaceuticals Inc. and the German Richter-Helm Biologics – working together, as well as larger firms with each other, as in the case of Sanofi SA and GlaxoSmithKline Plc., to accelerate Covid-19-related manufacturing. 

To add further momentum to this spree, the private sector and universities have also joined forces.

However, it is quite clear that all these instances I mentioned above are quite unusual within the existing domain of IPR. I am curious whether the aforementioned changes reflect changing dynamics and will become the norm with patent pools becoming a more common feature of IP rights. 

Clearly, these deviations from the 'business as usual' case under the ambit of IP may seem to interfere with the rights of inventors and investors, even though they do not in reality. This is because even though the initial response to the pandemic did open the doors for new IP regimes, the legal and financial rights of inventors and investors can still be protected. 

In this regard, Anjula Gurtoo and Rahul Patil from the Indian Institute of Science suggested interesting solutions. 

Say for instance, (1) Government facilitated voluntary licensing: in this option, the government negotiates with the patent owner for lower prices instead of evoking compulsory licenses since negotiating for voluntary licenses at reasonable rates does not impede the rights of the patent owner. 

(2) Active exploration of IP and non-IP incentives: One non-IP incentive a government can offer is a transferable/roaming intellectual property right. Here, a company is awarded an additional IP on a product of its choice in exchange for developing a given product pertaining to an urgent disease. 

Another is a fast-track accelerated approval, whereby a company receives more rapid regulatory review for a product of its choice in exchange for developing a product pertaining to urgent diseases. 

Still, the fostering of innovation and accessibility to medicaments for the masses during this pandemic, particularly in developing countries, is a big concern.  

As for Bangladesh, it still enjoys the exemption accorded to LDC countries under Article 66 of the TRIPS. As a result, pharmaceutical patents granted elsewhere do not enjoy patent protection in Bangladesh. 

Thus, Bangladesh can ensure access to drugs at a very low cost for the treatment of novel coronavirus related complications for over 160 million people, as well as many other LDCs in the world.   

Sabbir Rahman Khan is Research Associate, Bangladesh Foreign Trade Institute (BFTI).