The heated debate concerning the need/possibility to waive the vaccine patents against Covid-19 has paved the way to a worldwide dispute about the regulation of certain aspects of international trade law as well as industrial and intellectual property. In this regard, there have been alternative proposals to the mere withdrawal of the patent, such as:
- promoting voluntary licenses by pharmaceutical companies, so as to support the exchange and transfer process of knowledge and technologies among companies at equal conditions;
- targeted patent suspension.
Liberalization of patent licenses
Patents recognise industrial ownership rights. They allow creators who hold a copyright to exclusively commercialise their invention in all those countries where the patent is requested. A patent cannot be used without permission. The use must be authorised and regulated by a contract between the parties. Should the patent be used without permission, the holder can file a Letter Patent Appeal, thereby sending the Patent Judicial Commission a request of examination asking for the Unified Patent Court to intervene on the case.
However, if a company elaborated an invention worth of being protected by patent, not only has the said company the availability of means and resources for its production, but it has also acquired the know-how to guarantee its functioning as well as its safety. A side-effect of patent liberalization could actually be that of putting people’s safety at risk by allowing an uncontrolled and potentially dangerous production.
Hence why liberalising patents does not solve all problems and cannot mean allowing anyone to freely copy an invention. Such a circumstance might have a negative effect on future experiments: waiving the inventor’s right of exclusive discourages investments in new research, and even the patent’s reproduction due to the lack of guarantees on the safety of the copy of the invention covered by copyright.
Patent suspension, Patent licence, Patent export ban
A thorough exam of the facts regarding the vaccine patent against Covid-19 allows us to elaborate new solutions in regards to some rigidities of trade law and industrial property when it comes to patent licence withdrawal or prohibition of use of patent and trademark.
Patent suspension
The internationally invoked need to share the knowledge acquired with a patent for the greater good has been recently treated by the summit of the world’s leaders. During the G20, in order to comply with these demands, a proposal has been brought forward for a targeted suspension of patents: limited in time, so as to enable the extension and the diffusion of the patent’s production and commercialisation, without jeopardising the incentive to innovate.
The path of licenses and patent share
One possible way to make the use of a patent or an invention as widely accessible as possible is to extend the patent license. In this case, it is the very developer of the invention who decides for whom and at what conditions to extend the production.
Patent export ban
As commercial lawyers are well aware of, patent protection in certain countries does not allow the commercialisation of raw materials, food, organic substances, etc. – the main examples being the USA and UK. By waiving export bans, it is possible to control the increase of funds for organisations such as WHO and negotiate for a price reduction with patent holders.
Patent protection and acquired rights
The juridical risk of a patent suspension imposed from above and for reasons of collective interest should not be underestimated. The patent holder is protected from the unauthorised use of their intellectual property. This aspect might lead to institutional conflicts and disagreements with no easy solution, and the consequent destabilisation and disharmonization of the laboriously-achieved worldwide industrial system, based on patent protection.
