A patent is essentially an exchange between the inventor and the government, where the inventor releases his invention to the public with a view of creating such an invention and in return, the government grants the inventor an exclusive period of time during which he has absolute claim on the invention (who, when, where and how that invention is made, used or sold). This duration shall be used by the inventor to recover the expenses accrued in the form of time, money and energy for the development of the invention.
Research and development for a vaccine, or even a medical procedure, is worth billions of dollars. Patenting not only promotes innovation around the world, but also creates and confers on companies some kind of authority in terms of exclusivity, cost, manufacturing, sales and licencing. However, it is also feared that policymakers would take this ability to regulate the distribution process and limit it on the basis of their preferences and their political scenarios.
The Covid-19 vaccine, which has not yet been fully developed, has the option of being patented like every other vaccine. Companies and countries have now begun to petition for a patented vaccine or research product/invention. A lot of time, money and effort have been invested by different nations, and organisations in their attempt to produce a vaccine against covid-19. It is only natural that they should at least try to recover these expenses if they do not make a profit from it.
Indeed, the Chinese National Intellectual Property Administration has already awarded patent rights to the vaccine designed by CanSino Biologics Inc. The US and the UK are also in favour of patenting the vaccine. For businesses and nations, this is their way of collecting their study costs and all other miscellaneous expenditures that have arisen during the duration of the research. Thus, patenting preserves the legal and economic interests of product-creating companies.
The legal and philosophical concerns resulting from the prospect of patenting a vaccine are a big problem that needs to be tackled. The concerns are, will this vaccine be available to all, will it be affordable, and who will make it? etc.
Accessibility to any drug is generally attributed to its affordability and consumer price. With the pandemic impacting the whole world, including developed and emerging countries, everybody would need to get access to medicines in order to effectively get rid of the virus. When an inventor has been given the rights to his invention for a certain amount of time, he still has to settle about the expense of the invention, who is going to make and market it, etc. Typically, those charges are agreed to compensate for the costs that the inventor or corporation has had to face/pay, and often they are not known to be affordable in developed nations.
This is where states incorporate compulsory licenses into the scheme. Compulsory licencing is commonly characterized as an authorization issued by a higher authority to any third party to make, use or sell a patented invention without the permission of the patent owner. This is going to come into play during those emergencies. Governments must therefore be allowed to pay the inventor the amount he would usually have received if the product were to conform to the usual Intellectual Property Rights process. There is a conflict of interest in the patenting of the device. The dilemma emerges between the business view and the social interests and how to strike a balance between preserving the inventor’s interest and making the vaccine available to everyone.
The Covid-19 virus is an epidemic that is being tackled by both countries and patenting the vaccine so it will only prove to be a hindrance. Both infected people need to be treated in order to combat the infection successfully. The vaccine would then need to be available to everyone, and not to any single agency or region.
One option may be to make intellectual property available to anyone under an unrestricted license. This open source license approach has been used by the book industry and technology firms for many years. Creating an open source license scheme would both split the risks to make them available to life-saving innovations and become an acceptable procedure. This will benefit not only private corporations, but also public companies. The EU has also suggested that states, corporations or organizations producing COVID-19 Vaccine should be entitled to confer IP rights on the World Health Organization. This will encourage factories around the world to make it at an inexpensive price. This approach was accompanied in Meningitis-A Vaccine.
Another idea would be to consider the definition of a patent pool. Patent pools are made up of associations or businesses from a single industry for example, pharmaceutical companies to bundle IP rights in a marketable fashion. This will not only make the vaccine affordable; it will also allow businesses and researchers to recover their costs. Patent pooling is known to be one of the most promising solutions for a global pandemic. In reality, the WHO has launched a ‘Voluntary Product Patent Pool’ for the vaccine Covid-19. This supports developed countries where medicines could not be considered available to all. It also allows businesses to waive their royalty to some degree. However, there are businesses and countries that do not believe in this scheme.
What we need to realize is that, this method has been set up to make the commodity affordable to everybody. The awarding of the right to a corporation to settle about the manufacturer, the distributor and the cost of the goods can be called unfair. Even if it’s not affordable for 1 person, it’s going to be deemed unjust because we’re fighting this battle against the Covid-19 together, so it must be made available to all.
Kosha Doshi, Patenting of COVID-19 vaccines: Possibilities and Challenges, Ex Gratia Law Journal, (March 6, 2021), https://exgratialawjournal.in/blawg/covid-and-law/patenting-of-covid-19-vaccines-possibilities-and-challenges-by-kosha-doshi/.