Amongst the fight against
the life-threatening COVID-19 pandemic,
the question arises whether or not pharmaceutical companies must be granted
exclusive patent rights for their COVID-19 vaccines. Although certain scholars and health
professionals argue that Intellectual Property (IP) rights should not be
exercised for the COVID-19 vaccines
in order to overcome the pandemic, our law and economics analysis shows that
the pharmaceutical companies which develop such vaccines should be allowed to
enforce patent rights over their products.
Firstly, waiving the IP
rights will stifle future innovation in the pharmaceutical industry. In fact,
granting IP protection to patent owners is designed to trigger competition in
the said industry and facilitate the pharmaceutical companies to invest their
time and monies in the Research and Development (R&D) of new drugs. Hence,
no such companies would be interested in developing effective COVID-19 vaccines in such a short timeframe if
they were not promised to receive the patent protection along with the
anticipated return of their investments.
However, some critics
claim that the patent rights for COVID-19 vaccines
must be set aside to achieve larger vaccination among the population and to
overcome the economic downturns accompanying the pandemic. Nevertheless, it is
noteworthy that the COVID-19 pandemic
is neither the first nor the last pandemic humanity encounter. Therefore, if
those companies are not granted patent rights for their invention, they may
show less incentive in developing new vaccines to combat diseases in the future
posing more disruption into the global economy in the long run.
Although it can be argued
that granting patent rights to those companies may lead to potential monopoly
and overpricing of the injections, the fact that the vaccines developed by
seven companies have been approved and there are 251 COVID-19 vaccine projects underway around the
world, including 70 are in clinical trials, with 16 in the most advanced phase
of testing[1] leaves no room for
concerns about monopoly. The imminent
competition will ensure the competitive price for vaccines that will enable the
public at large to access affordable vaccines.
Finally, the patent, at
any extent, should not be regarded as a barrier to the production of COVID-19 vaccines which shall meet the global
demand, as opponents claim. The provisions of the TRIPS Agreement and Doha
Declaration already offer certain flexibilities in regulation of patent rights
allowing states to manufacture the generic versions of vaccines through
compulsory licensing in public health emergencies. Thus, this is a win-win
situation since it gives access to the vaccines to those in need and provides
royalty to the patent owners to keep them on track to continue to invest in the
R&D. However, implementation of compulsory licensing itself requires the
grant of patent rights first.
In sum, the patent
suspension may lead to economic repercussions by disrupting future
pharmaceutical inventions, while its existence in contrast constitutes a
solution to distributing COVID-19 vaccines
in a time-efficient way and at an affordable price worldwide.
[1]
WHO Publication: Draft landscape and tracker of COVID-19 candidate vaccines, 22
February 2021, available at https://www.who.int/publications/m/item/draft-landscape-of-covid-19-candidate-vaccines
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