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A CURE TO THE PANDEMIC: A PERISCOPIC VIEW


Every household is discussing the possible cure to the cosmopolitan pandemic amidst the trans-border and domestic shutdown to subdue the spread of the disease, making the availability of adequate medicament an outraging issue. In response to offer smooth technology-transfer and accessibility of these necessities, compulsory has gathered much attention.

Compulsory , as the name suggests is a which enables a competent government authority to the use of a patented invention to a third party or a government agency in lieu of a decided royalty rate where the invention has not been used to the benefit of the consuming public for a period of three years. It finds place in both the international instruments, TRIPS Agreement[1] as well as the Doha Declaration on Public Health[2] because of which member-states have been bound to reflect the provisions in their domestic laws with marginal flexibility. India also embraces the provision for compulsory in its Act, 1970 in section 84. In addition to the aforementioned, the Act also empowers the government to acquire the stockpile of patented goods, therefore, if a vaccine is developed in India, the well-being would be best ensured[3]. An exception to compulsory may be observed in times of national/extreme emergency[4] or for public non-commercial use, qualifying countries lacking infrastructure to seek aid from exporting counties by presuming the legal authority to manufacture. India is also a potential exporter which has expressed its willingness to the WTO to use the system to import only in times of national/ extreme emergency. From a diplomatic standpoint, since India is one of the largest exporters of generics, it would in all-likelihood undergo immense pressure from the international community which might not work in its favor[5].

India unlike the USA has enforced a compulsory , even though the Bayh-Dole Act or as otherwise known, the and Trademark Law Amendments Act has incorporated the “march-in-right” provision for compulsory in the US. This could possibly be owing to the stringent and straight-jacketed laws or prior-fulfillment of consumer needs that compulsory has skipped on the soils of America. Even the Least Developed Countries tend to shy away from deploying the said tool because of bilateral restrictions or other trade barriers[6].
Therefore, it becomes pertinent to think of other alternatives to compulsory as well. It is important to consider that only if a patentee disagrees to out an invention can a compulsory be invoked. An initial and suitable recourse in mature regimes, presumably, would be “voluntary ” which would work to benefit all the counterparts, the patentee, the consumer and the government. Also, I believe, where negotiations fail, countries can bank on “parallel imports” from member-states having a bulk of supplies to forego. To state an example, consider the first ever compulsory imposed in India; where Bayer sold the drug Nexavar for 2.84 Lakhs for a month’s dosage and Natco proposed to price the drug as low as Rs 8,880 a month. Similarly, very recently, Remdesivir has reached phase III for clinical trials as a possible cure to Covid-19 which has been priced at the rate of Rs.2,89,900 per patient by Gilead; the same has been proposed to be priced at a low rate of Rs 55,000 per patient by a generic producer, Mylan, which is an outcome of a non-exclusive voluntary . Therefore, this projects the need to negate any aggressive strategy to make available a drug or vaccine since a voluntary may prove to be as beneficial as a compulsory as observed above. Therefore, compulsory “might” not be necessary.

After observing failed negotiation or attempts at securing a voluntary , if compulsory still deems to be the only solution to achieve mass production and outreach, it would require a certain degree of modification and uniformity in domestic laws of the countries seeking to enforce the provision to adjust to the current realities. Like recently, the legislatures in Canada [7], Chile[8] , and Ecuador[9] laid the legal groundwork for the issuance of compulsory to address Covid-19 since each member nation has the freedom to determine the grounds on which the may be granted.

There’s a possibility that the cure to Covid-19 may turn out to be an existing drug that has expired over the years. Even if the discovered cure is -protected, there may be drug donations, discounts, or the holder may offer voluntary at affordable rates.[10] It would be very exciting to find out how the events turn out to be and whether or not a compulsory would be enforced to achieve global outreach of these lifesaving drugs.

[1] Article 31, TRIPS Agreement 1995
[2] Article 5, Doha Declaration on Public health, 2001
[3] Section 102, Act, 1970.
[4] https://www.wto.org/english/tratop_e/trips_e/factsheet_pharm02_e.htm
[5] https://economictimes.indiatimes.com/industry/healthcare/biotech/pharmaceuticals/affordable-access-to-covid-19-drugs-are-voluntary–licences-here-to-stay/articleshow/75756605.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[6] Harris D.TRIPS after fifteen years: success or failure, as measured by compulsory . J Intellectual Property Law. 2010;18:387
[7] https://www.canada.ca/en/department-finance/news/2020/04/government-introduces-covid-19-emergency-response-act-no-2-to-help-businesses-keep-canadians-in-their-jobs.html
[8] https://home.kpmg/xx/en/home/insights/2020/04/chile-government-and-institution-measures-in-response-to-covid.html
[9] https://www.mondaq.com/fiscal-monetary-policy/910356/new-measures-against-covid-19
[10] Wong, Hilary. “The case for compulsory during COVID-19.” Journal of global health vol. 10,1 (2020): 010358. doi:10.7189/jogh.10.010358