Should pharmaceutical companies be allowed to enforce patent rights on their COVID-19 vaccines?
01.04.2021
Amongst the fight against the life-threatening COVID-19 pandemic, the question arises whether or not pharmaceutical companies must be granted exclusive patent rights for their COVID-19 vaccines. Although certain scholars and health professionals argue that Intellectual Property (IP) rights should not be exercised for the COVID-19 vaccines in order to overcome the pandemic, our law and economics analysis shows that the pharmaceutical companies which develop such vaccines should be allowed to enforce patent rights over their products.
Firstly, waiving the IP rights will stifle future innovation in the pharmaceutical industry. In fact, granting IP protection to patent owners is designed to trigger competition in the said industry and facilitate the pharmaceutical companies to invest their time and monies in the Research and Development (R&D) of new drugs. Hence, no such companies would be interested in developing effective COVID-19 vaccines in such a short timeframe if they were not promised to receive the patent protection along with the anticipated return of their investments.
However, some critics claim that the patent rights for COVID-19 vaccines must be set aside to achieve larger vaccination among the population and to overcome the economic downturns accompanying the pandemic. Nevertheless, it is noteworthy that the COVID-19 pandemic is neither the first nor the last pandemic humanity encounter. Therefore, if those companies are not granted patent rights for their invention, they may show less incentive in developing new vaccines to combat diseases in the future posing more disruption into the global economy in the long run.
Although it can be argued that granting patent rights to those companies may lead to potential monopoly and overpricing of the injections, the fact that the vaccines developed by seven companies have been approved and there are 251 COVID-19 vaccine projects underway around the world, including 70 are in clinical trials, with 16 in the most advanced phase of testing[1] leaves no room for concerns about monopoly. The imminent competition will ensure the competitive price for vaccines that will enable the public at large to access affordable vaccines.
Finally, the patent, at any extent, should not be regarded as a barrier to the production of COVID-19 vaccines which shall meet the global demand, as opponents claim. The provisions of the TRIPS Agreement and Doha Declaration already offer certain flexibilities in regulation of patent rights allowing states to manufacture the generic versions of vaccines through compulsory licensing in public health emergencies. Thus, this is a win-win situation since it gives access to the vaccines to those in need and provides royalty to the patent owners to keep them on track to continue to invest in the R&D. However, implementation of compulsory licensing itself requires the grant of patent rights first.
In sum, the patent suspension may lead to economic repercussions by disrupting future pharmaceutical inventions, while its existence in contrast constitutes a solution to distributing COVID-19 vaccines in a time-efficient way and at an affordable price worldwide.
Kanan Khalilov
Legal Associate
BHM Law Firm
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