Patents: TRIPS’ Flexibilities as Response to COVID-19. Lessons Learned and Future Policy’ Perspectives

Abstract

The health emergency triggered by the COVID-19 pandemic gave rise to an intense debate about the role of industrial property (IP) rights. Some argue that IP rights may hinder the development, manufacture and distribution of products essential to tackle the pandemic, others instead advocate in favour of a strong IP protection for incentivising innovation and technology transfer. Against this background, this paper highlights current and past controversial examples to shed light on the tension between IP right holders’ and the general interest of society in having guaranteed effective and equal access to essential medicines. It further analyses the different measures available at international level, as well as the different initiatives currently under international debate, such as the proposal for the transitional waiver of IP rights introduced to the WTO by some Member States. The paper concludes that a compromise should be sought in international cooperation, striking a fair balance between both interests at stake, while contributing to delineate a regulatory framework to address potential future health crises. The paper is organised as follows: Part I. Contextualises the debate, Part II. Analyses from a historical viewpoint the tension between IP rights and public health, and discusses the flexibilities provided by TRIPS focussing on compulsory licenses. Part III. Building on publicly controversial examples of the pandemic it reviews the TRIPS’ flexibilities, particularly the compulsory licenses as a response against COVID-19. It also examines the main legislative amendments and other measures adopted by some States, as well as other voluntary initiatives. Part IV. Explores the different position adopted by States in relation to two proposals seeking for a generalised suspension of IP rights in times of pandemic. Part V. It Draws conclusions.