[Ip-health] Voluntary Patent Pool, yes, but as a Supplement to Compulsory Licensing?

Sudip Chaudhuri sudip1953 at gmail.com
Tue May 12 07:31:52 PDT 2020

In the light of COVID-19, Costa Rica’s proposal to the World Health
Organization to set up a voluntary patent pooling and information sharing
mechanism to make vaccines and other medical products affordable and
accessible, has evoked a lot of interest and optimism. In fact, this is
being widely recommended as an alternative to compulsory licensing. Any
voluntary initiative to make medicines more affordable is always welcome.
But whereas voluntary licensing mechanisms require the consent of the
patentees, compulsory licensing can be granted without such consent, in
fact mostly against their consent. Medicine Patent Pool has been a great
experiment but it has been successful in products where the patentees
agreed to participate. If voluntary licensing can ensure what compulsory
licensing can, then obviously neither the question of granting compulsory
licenses nor the need for vehemently opposing it by originator companies
and developed country governments would arise. In one of the possible
scenarios, if the new vaccines are patented and if the patentees voluntary
decide to place these patents in a pool and if generic companies can use
the pool to manufacture the vaccines on payment of royalty then that of
course will have a tremendous positive impact. The crucial question is
whether the originator companies will do so in the light of the immense
business opportunities that COVID-19 pandemic provides. During the AIDS
pandemic they did not sacrifice their profits when people in developing
countries were dying. In response to the public outcry, these companies
agreed to provide some discounts. But the ARVs actually became affordable
only after generic competition from India started.  In the post TRIPS
world, for patented products, similar generic competition is possible under
compulsory licensing system.

In the unusual circumstances arising out of COVID-19, it is of course
possible that the originator companies and the developed country
governments will behave differently and developing countries should be
hopeful of a positive outcome. But rather than passively relying on
international voluntary initiatives, it is also important for developing
countries to start doing what they can do. No country can overnight start
using compulsory licensing when they are not used to it. Compulsory and
government use licensing provisions under the TRIPS agreement have remained
practically unutilized in countries such as India which have the potential
to manufacture the new vaccines and medicines which may be developed. The
compulsory licensing system in India is extremely cumbersome. Developing
countries have also been subjected to undue political and economic pressure
to forego the use of TRIPS flexibilities. But it is an entirely different
world after COVID-19. It is important for India and other developing
countries not only to resist foreign pressures but also to start
preparations for putting in place a simple and effective compulsory
licensing system to permit generic competition when new vaccines and
medicines are developed.

Sudip Chaudhuri

Visiting Professor

Centre for Development Studies, Trivandrum, India

sudip at cds.edu.

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