Compulsory Licensing of Patents and Access to Essential Medicines in Covid 19 Era.

Compulsory licensing is an essential federal health tool – it can help manage inadequate quantities of inevitable medical supplies and decrease the control on expensive drug prices. Some countries face a high risk of coronavirus-affected populations and provide treatment at a reasonable price. While the compensations of patent protection are inevitable to support constant innovation, the compulsory licensing exception is for public health crises such as the current COVID-19 widespread.

What is the necessity of compulsory patenting?

The COVID-19 pandemic has ravaged developed and developing countries in Asia, Europe, and North America for the past two years. While there are ongoing attempts to find a cure for COVID-19, scientists are rushing to test new and existing drugs in search of an efficient remedy. 

The governments of the developing countries are encouraging ways to fight the coronavirus, but the concern is also to ensure that COVID-19 treatments are affordable and easily accessible.

Even in first-world countries like the United States, many COVID-19 patients have struggled with the high expense of treatment and its complications. COVID-19 victims are likely to encounter even more difficulties accessing and sustaining medication in developing countries. The huge population of low-income countries with under-resourced health facilities threw a big challenge. Moreover, many people in developing countries are at a high risk of undergoing severe COVID-19 because of weak health conditions from chronic malnutrition, tuberculosis, or HIV.

Apprehending the requirement of their weak and vulnerable populations, the developing countries are in utmost need of preparing to issue compulsory licenses of any effective COVID-19 treatments. 

How have TRIPS contributed to the development of COVID 19 medication?

Compulsory licensing is a provision in the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), enabling the authorities to provide its residents with generic versions of patented treatments. It can be performed either through domestic production of medicines or imported medicines. 

Previously, compulsory licensing was practiced as a robust policy mechanism for controlling the treatment of the AIDS epidemic. While there is no approved treatment for COVID-19 yet, the domestic governments are legally bound to issue compulsory licenses and cannot avoid this policy option when a cure is available.

Before the intervention of the TRIPS Agreement, many countries monitored and controlled the manufacture and supply of pharmaceutical products but released them from patentability to control the drug prices to ensure affordability. India had previously only allowed for processing patents and not product patents. 

As per the TRIPS invoked patent administration, WTO member states are bound to introduce product patents and grant exclusive marketing rights to innovators. These increased patent protections allow pharmaceutical companies to fix high costs, putting medicines out of reach for the low-income population. 

However, the TRIPS Agreement provides states with some freedom in managing patents for common goods such as pharmaceuticals. 

How have countries responded to compulsory patenting?

Several countries have already implemented compulsory licensing as part of their COVID-19 response. In order for a state to use compulsory licensing for COVID-19 relevant uses, its national legislation must have plans in place to approve such action. Several countries have already taken legislative steps to ensure that their governments can swiftly issue compulsory licenses as part of their COVID-19 response.