Trade and Commerce form an integral part of the economy. The growth and prosperity of the nation can be judged on how stable the economy is during tough times. One such pandemic situation can be witnessed now when the entire world is held in the clutches of the coronavirus; the trading system is greatly affected by it. The economy is shaken by various import-export restrictions put forward by the Central and State Government. Yes, the situation was not expected, and the Country (World, to be specific) was not ready for it. Yet, economic planning and safety measures have been taken to compensate for the loss of economic growth of the nation.
United we stand, divided we fall is the mantra for the recovery. Yes, we, the citizens of the country, have to join our hands and work for the betterment of the nation. It is essential that we focus on the solution rather than grieving on the problem, and that’s what India’s pharmaceutical industry has been doing. Be it lockdown or restricted movements, and the biotechnology and pharmaceutical industry has been working their soul out in the discovery of the vaccine and medicines that can curb the effects.
Having said that, one of the major issues faced by the discovery of medicines and Vaccines is the IP Rights issues (Patentability issues).
Intellectual property is the oil of the 21st century and acts as the bridge between the economy and recovery from the pandemic. Indian History had witnessed similar situations when we had to choose between PUBLIC RIGHTS AND PRIVATE RIGHTS; we all know what had been the right choice. The current situation also calls for a similar yet very difficult choice. We need to take stronger measures and at the same time analyze the legal implications of the choice we make.
Mind War for all IP Holders: Conscience vs. Money
The basic question for you all to answer- what does the country need now? What can be possibly done to boost the economy? Should we make the most out of the current situation or understand the plight of the country and strive hard to support the nation? We all know that life is all about making choices, and this time as well, the choice is ours.
Legally speaking, when we have a glance at the Magna Carta of our legal system – The Preamble, the very first line states that “We, The People of India”, beautifully the system gives out the message that we have to consider ourselves citizens of the nation and we are bound by the system. We never fail to voice out for our rights, but we are always in a dilemma when it comes to fulfilling our duties. That’s what we are going to discuss in this section.
As the title suggests, we are going to discuss the mind voice of all the IP Holders out there:
Considering the given situation, the impact of a pandemic can be felt globally. The intellectual property sector has been highly affected by the outbreak of the pandemic, and there is an urgent urge to address the issues concerning public health service and the research and development sector. All the research institutes have shifted their focus to the discovery of medicinal equipment, which can possibly lower the effect of the outbreak. This has resulted in a halt of all other possible inventions, and consequences of such have been harsh on the invention sector.
The best possible thing to reduce the effects of a pandemic is the urgent need for the Government to use its power to liberalize the IP restrictions in order to employ protective medical equipment for public health and safety effectively.
Talking about the dilemma, yes, IP holders are on thick foot to develop the cure of the virus, which calls for patent rights over the inventions. Having said that, if patent rights are claimed, then there will be a shortage of production, and royalty rates will result in a price hike. Not that the virus is affecting high-end people, but the effects can be seen on the entire society. Affordability and availability of medicines are two important things for the world right now. If the IP holders think about monetary gains, they will have to let go of their consciousness, which is not the most rational thing to do.
What can possibly be done in such a situation? Invocation of the exception under Article 73 will be the best thing to be done at this point.
Article 73: Security Exceptions: Nothing in this Agreement shall be construed:
(a) to require a Member to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests;
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition, and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or another emergency in international relations; or
(c) to prevent a Member from taking any action in pursuance of its obligations under the United Nations Charter to maintain international peace and security.
We are of the opinion that if Article 73 of the TRIPS is invoked, then the warrant to procure medical products and devices or to use the technologies to manufacture them as necessary to address the present public health emergency will be solved to an extent.
Revoking the enforcement of IP rights under Article 73(b) of the TRIPS Agreement, an obstacle for the procurement or local manufacturing of the medical equipments and necessary devices to protect the world’s population will be an outcast.
But, then what about the time, money, and efforts of the inventors put in the process of developing the medicine? Will not giving those IP rights justify the efforts put in? The answer is very clear.
The possible solution to give credit to the inventors for the efforts, time, and most importantly, money is to revoke the rights till the pandemic situation goes better and then give these inventors the recognition they deserve. However, these rights are at a halt as the IP system of the country is on limited functioning, and with respect to pharmaceuticals, there is a bigger question about exclusivity rights.
The answers to exclusive rights and compulsory licensing will be dealt with in Part 2 of the Article: The Conundrum of Compulsory license under the Covid-19 regime.