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Patents and the Right to Health in the COVID-19 Era


IP Access to Health is essential nowadays in the pandemic because a healthy mind lives in a healthy body. Right to health under article 21 has been interpreted by the Supreme Court to include medical aid, making a safe environment of drinking water and air system, and building up hygienic hospitals. As per the United Nations, these are also essential elements for a dignified life.

A person will have sound health determined by various factors, including the environment, the physical fitness of a person, and healthy food. Still, it is greatly influenced by the perfect intake of the nutrients and the access to the medicines that boost the normal functioning of the body’s vital organs. If a diseased body isn’t adequately immunized, the person is more likely to encounter health difficulties.

drugs, medicines, theraputics

Right to Health: Shifting Paradigms from COVID-19

There are many provisions in international treaties dealing with health issues. According to Article 25the Universal Declaration of Human Rights (UDHR), everyone has the right to a standard of living adequate for their own and his family’s health and well-being, including food, clothing, housing, medical care, and necessary services, as well as the right to security in the event of unemployment, sickness, disability, widowhood, old age, or another inability to earn a decent living due to the circumstances beyond his control.

The Covid-19 pandemic has proved the essential role of public healthcare- an effective vaccine has been proven to be the best way to curb the virus and get lives and economies back on track. Criticisms have been thrown at IP for adding additional obstacle to the vaccine. Precious time and resources are wasted on IP negotiations, and the opacity of IPR-related agreements /matters may pose significant barriers to timely, affordable, and equitable global access. More fundamentally, existing intellectual property practices have already slowed the response time to the current pandemic and continue to hamper efforts to implement global preparedness for future pandemics.

COVID-19 has heightened the traditional debate concerning intellectual property and access to medicines. However, in addition to the conflict between patent rights and access to affordable medicines, a new dimension has been added to the debate this time. There is significant concern that existing manufacturing capacities may become a barrier to access once vaccines and treatments are developed.

Health and Medicine

It has been observed that the contribution of medicines to health is undeniably significant; thus, access to drugs is an essential component of the right to health. Health services are required to deliver medication to sick people as well as to prevent illness. Availability and affordability of necessary treatments are required for people’s good health. In such cases, the role of medical professionals and the pharmaceutical industry becomes vital.

As of now, the current pharmaceutical innovation system impacts the availability of medicines for millions of people. Understanding these flaws is critical amid the COVID-19 pandemic, as it may aid in the development of practical approaches for improving access. As we see below, the current system is incapable of adequately combating pandemics while also providing affordable and equitable access to all. The proprietary nature of the current system based on strong intellectual property protection has considerable impact on access to medicines.

Potential Health Issues Linked to Patents

Patents are a monopoly right granted by the state to an inventor in return for making their invention available to the public. Unfortunately, monopoly pricing of existing drugs causes patients to face the problem of insufficient market access. Pharmaceutical companies argue that strong patent protection is required to protect their R&D investments.

As a result, the current legal framework has evolved around the model of private pharmaceutical companies conducting proprietary research, the results of which are typically protected by multiple patents. This type of proprietary research has several negative consequences. For starters, it can waste significant time and resources due to duplicative research activities by numerous pharmaceutical companies and knowledge fragmentation. It can also lead to access issues due to high prices. Second, these companies typically seek the broadest and most potent patent protection for the results of their research to gain market exclusivity, which allows them to set the price of their products. As a result, access to these products is frequently hampered due to their high prices.

Compulsory Licensing: A Safeguard In Case of Emergencies

The patent regime does have a solution to this sort of problem, however. Compulsory licensing generally increases market competition, which can help to keep medicine prices under control. Pharmaceutical companies should assist developing countries by issuing simple terms and conditions for access to essential medicines. As a result, companies should be prepared to supply the medicine while reducing their profit margins to avoid compulsory licensing and the resulting competition.

Amidst Covid-19, Pharmaceutical companies continue to patent the results of their research activities, so it’s a license granted by a state authority that allows the person who receives it to use the invention without the patent holder’s permission. While most countries have incorporated a compulsory license regime into their IP legislation, the grounds for granting such licenses may differ. The following are typical grounds: (a) insufficient market demand; (b) exploitation of patent rights violates competition law (e.g., exorbitant prices); (c) patentees abuse their exclusive rights; and (d) interest of the public (for example, health, the environment, economic development, and national security); (e) dependent patents (e.g., technical improvement).

It can use a particular type of compulsory license to assist governments in securing an adequate supply of COVID-19 medicines. It is known as ‘government use.’ It occurs when the state grants permission for its use, implying that such authorization is granted to a state agency or department or even a private entity. The effectiveness of this mechanism is demonstrated by the fact that the government is not required to make a formal request to the patent holder; instead, it can act ex officio to address specific public health issues.

As a result, governments will not have to spend time negotiating a license, as required by Article 31 TRIPS in the case of a normal compulsory license, but will be able to grant a government use when it deems it necessary.

Author: Aranya Nath, Legal Intern at PA Legal.

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