JURIST Guest Columnist Jobaira Nasrin Khan, an LL.B. graduate who is also pursuing an LL.M degree at Eastern University in Dhaka, Bangladesh, discusses the challenges pharmaceutical patents present to international cooperation and treatment of COVID-19...
COVID-19 patients are frequently constrained to solitary confinement in order to curb the continuing spread of the contamination. The race for medicine or a vaccine to treat COVID-19 is on. The pharmaceutical industries are being asked to donate the intellectual property (IP) of the relevant medicinal equipment or medicines by officials advocating for public health interests. The WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in contrast is fashioned to sustain the rights of the inventors.
Now the issue is why should they give out the pharmaceutical patents in an unrestricted manner? And it is a reasonable question involving intellectual property rights, assurances fulfilling required quantities, and the nature developing countries’ administrative and economical competence. In fact, many of these countries have not up until now flourished pertinent national standards to mesh cogently with the obligations they owe under TRIPS.
This has still yet to be examined for the treatment of COVID-19 where people are still desperately searching for anything to combat the malignant disease. Leading biotech and pharmaceutical firms are in a scramble to invent and evolve explicit vaccines and drugs. If they succeed and become a holder of the pharmaceutical patent, then they will be financially favored and their rights will be protected by the TRIPS Agreement. They will have had to endure the struggles and confer the expenditures while other competitors revitalize and take compatible initiatives ultimately favoring society at large. Nonetheless poor and developing countries often find it troublesome to afford because freshly patented meds attain an exorbitant initial cost. Taking into account the ebb and flow of the COVID-19 pandemic, patent holders will seek to provide their medicinal supplements to aid premier destinations of public interest.
What Are Pharmaceutical Patents and Why Do They Exist?
A pharmaceutical company, when it generates a fresh medicine for any illness will market it under by a “brand name” and “the patent” grants the company marketing and manufacture rights which inclined with profit concerns mainly assist in balancing the expenditures required to produce the med.
Now when the patent is terminated, different companies can manufacture the medicine replicating the branded drug but the generic medicine they create must be bioequivalent to the branded med in characteristics, quality, safety, dosage form, and the intended usage.
The global politics concerning pharmaceutical IP has been mostly about the struggle between R&D companies and their governments on one side and developing countries and NGOs (upholding the public’s right to reasonable medications) on the other. Certain companies may abuse patents for monetary benefits which can impede progress. Lawmakers must be discreet regarding patents, visualizing the plots in their detrimental exercise under this deadlock positioning because even when the creation may be pivotal to extricate lives, patents can exclude many people from access.
The TRIPS Agreement
The Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement was designed as an approach to assemble IP rights beneath a synthesized scheme of international rules. Its aim is to shield the rights of inventors respecting expenditures from the research to conjointly determine the least possible specifications necessary for lawmaking and techniques to administer IP laws implementation at the national level. However, it results in the creation of dominating monopolies which often manipulate trade regarding vital products like lifesaving drugs. Patents may escalate the valuation of pharmaceutical products to the customers as long as they allow pharmaceutical companies to set rates surpassing the peripheral amount of their manufacturing costs and impeding competition.
Under Article 31 of the TRIPS Agreement, any Member State or any entity can manufacture a generic replica of a pharmaceutical appliance or medication by holding a “compulsory license” without the approval of the owner of the patent amid a national emergency, public emergency, governmental use or any circumstantial extreme urgency, contingent on assured limitations that is- the patent holder should be indemnified a decent value disposed of by the government, the medicine should be used for domestic purpose only for a narrow course of time as uninterrupted production of the medication might cause intrusion on the rights of the patent holder.
Developing countries are concerned about the influence of the World Trade Organization (WTO) Agreement on TRIPs on their economies. Where access to medications is uncertain, technologically impoverished States are certain to encounter a sharp reality due to the monopolistic nature of pharmaceutical patent rights.
A Pharmaceutical Patent Should Not Be a Limiting Factor in the Pandemic
For decades, commercial pharmaceutical industries have been locking up IPs pertaining to life-saving drugs by prolonging the period of patents and coming up with intangible or unconscionable secondary patents. They have also lobbied against ratification and manufacture of generic products.
Monopoly is holding us back, in this prevailing pandemic. When patents are involved, the technology necessary in this pandemic like adequate testing kits, respirators, N95s, and others each carry complications for manufacturers to produce fresh equipment appropriately. A worse situation may emerge when, for treatments, there are multiple patents and, due to competition, affordability and supply will be the key factors at stake for developing countries. Most developing countries are now confiding in leading pharmaceutical firms expecting some expedient outcomes for medications, vaccines, clinical trials and parallel technologies. This ultimately conveys the suppliers, the holders of the patent, the ability to charge excessive prices without the efficiency to carry these products for developing countries.
Conjecturing on the COVID-19 pandemic, several biotech communities and pharmaceutical companies have displayed enthusiasm to allot and publish transparently the information on medications and clinical experiments that may help. Besides potential public intercession is essential notably in developing countries to save their right to life. Because when Gilead, producer of remdisivir (an empirical antiviral med to cure COVID-19) had filed a patent application with a status of “orphan drug,” a public objection made them withdraw the application prevented them from acquiring a vigorous monopoly.
Moreover, COVID-19 stirred countries, especially the developing ones who are lagging behind in terms of finances, to utilize patented drugs at a modest rate by declaring “state emergency” and resorting to the law of “compulsory license” supporting their consistent patent statutes with a view to require regional pharma companies to generate medicine to preserve the right to life of their citizens.
Some last words
It is virtually impossible to combat despotic monopolies because they have remarkable financial assets and cardinal research effectiveness. Being in a superior market position, high-caliber pharmaceutical organizations conspire to uphold uniform medicine rates across the world, despite ample disparity between developing, underdeveloped and developed countries, out of fear that if they allow poor or developing countries to buy medication with reasonable cost than developed countries may also urge the same price which they believe will lead to monetary devastation for them.
The illusion that to protect the IP rights is “necessary” in a pandemic was disproven when the Global Influenza Surveillance and Response System (GISRS) assembled experts from all over the world for discussion regarding the vaccine. In this era of the COVID-19 pandemic, questions of prudence and morality should have arisen to reduce the death toll. Several hopeful recommendations from policymakers and scholars have now appeared, for instance, the proposal for an intellectual property pool by Costa Rica which may ignite hope.
For more on COVID-19, see our special coverage.
Jobaira Nasrin Khan has an LL.B. from BRAC University in Dhaka, Bangladesh and is currently pursuing an LL.M. at Eastern University in Dhaka Bangladesh. Jobaira is also a contributor to the Daily Observer in Bangladesh
Suggested citation: Jobaira Nasrin Khan, Pharmaceutical Patents in the Era of COVID-19: The Aftermath on Developing Countries, JURIST – Student Commentary, May 10, 2020, https://www.jurist.org/commentary/2020/05/jobaira-khan-pharmaceutical-patents-covid19/
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at email@example.com
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