Access to essential medicines and other health products to treat COVID-19 and Intellectual Property Rights: Special reference to patent compulsory licenses

Mª Mercedes Curto Polo

Keywords

Access to medicines; Intellectual Property Rights; Patents; Public Health; Compulsory Licences.

Abstract

The World Health Organization in the Strategy Update of April 2020 to the Strategic Preparedness and Response Plan to COVID-19 highlighted the coordinated support that is required from the international community to meet the challenge of COVID-19.
Nevertheless, it seems that the different laboratories (sometimes supported by national Governments) which have undertaken an unknown race in order to first arrive to the vaccine or the drug most effective against COVID-19 are not going to give up the opportunity to protect these inventions by IPRs, especially patents. In fact, patent offices from different countries have announced that the number of patent applications related to COVID-19 has dramatically increased in the latest months.
Patents confer an exclusive right on the invention during a limited period, so the access to medicines protected by patents imply a cost that cannot be generally afforded. Once more the conflict between Patents and Public Health arises. Patents are not absolute rights. Patent Law recognises some limits to the exclusivity on grounds of public interest; among them, the possibility of unauthorised use of the invention through compulsory licenses. The purpose of this article is to analyse this legal instrument as well as other alternative mechanisms which would allow to satisfy the global demand of these health products in case of health emergency.