31 Jul 2020

Compulsory licensing and access to future Covid-19 vaccines

Weinian Hu

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Since the recent World Health Assembly failed to declare future Covid-19 vaccines a global ‘public good’, they are confirmed as private (intellectual) property and will be subject to patent rights protection as a pharmaceutical product. This confirmation could, however, trigger concerns about access to vaccines on the grounds of public health, which is a valid consideration for both developing and developed countries, including EU member states. Would developing countries have access to affordable Covid-19 vaccines, once available? Would an EU member state be eligible to import generic versions of a patented vaccine if it has insufficient or no manufacturing capacity? Moreover, how to enable an expeditious and predicable multiple patent examination process so that Covid-19 vaccines could become market-ready more efficiently?

This paper examines compulsory licensing and Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health as policy alternatives to voluntary licensing for access to affordable future Covid-19 vaccines. With regard to manufacturing capacity, the EU and its member states may not be eligible to import since they opted out of the Paragraph 6 system outright (although they may still export under the same system). Fortunately, this does not appear to be a major problem since statistics show that most EU27 imports of all pharmaceuticals are from Europe itself, with China a distant second supplier.

For China, however, its pharmaceutical-related patent protection measures under the US-China Economic and Trade Agreement on admissibility of supplemental test data and effective patent-term extension are conducive to a predicable multiple patent examination process for streamlined searches and consistent examination results. To this end, a few initiatives launched in the past at regional and international levels, such as the European Patent Convention and the Patent Cooperation Treaty and, among the world’s largest patent office, the Trilateral Cooperation (on patent) and IP5 Cooperation, for example, will be essential to deliver on these objectives. As contracting members, EU member states will benefit from all these mechanisms.

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