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Exploring COVID-19, access to medicine and intellectual property

By Bemanya Tw

Added 30th June 2020 09:34 AM

With the COVID-19 pandemic raging, Uganda can take advantage of the flexibilitiesnincluded in the Industrial Property Act, 2014

Exploring COVID-19, access to medicine and intellectual property

With the COVID-19 pandemic raging, Uganda can take advantage of the flexibilitiesnincluded in the Industrial Property Act, 2014

Since 29th December 2019 when the COVID-19 virus was announced in Wuhan Province of China the virus has spread to all parts of the world and the impact has been devastating. Economies have shrunk, unemployment has substantially increased, lockdowns and quarantines that seemed draconian now seem normal and governments are grappling with finding effective measures to combat its spread while maintaining a certain level of normalcy in the face of increasing infections and loss of thousands of lives.

On the other hand, scientists and researchers are working around the clock to be able to find a vaccine although nobody can tell, with certainty, when this will be achieved.

Unprecedented levels of cooperation between often opposing monopolies in developed countries with the goal to develop a cure to the novel Corona virus-COVID-19 have perhaps subtly created a symbiosis with the aim to develop a vaccine and/or cure. The inevitable outcome will be the development of intellectual property and undoubtedly pharmaceutical patents.

The rationale for intellectual property protection systems especially patents is that as an incentive for the investment necessary to develop inventions such as new drugs, the inventor is granted a monopoly for a limited time to realize fruits of their labor in the market. As such this market-driven innovation model that uses intellectual property rights provides incentives for investment into products for which a market exists. The patent monopoly usually results in high prices for drugs reducing the accessibility of vital treatments for the public a situation that is not tenable in the face of a public health crisis like COVID19.

In 2008, the World Health Organization adopted the Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property to provide a framework for securing an enhanced and sustainable basis for needs driven essential health research and development relevant to diseases which disproportionately affect developing countries through among others application and management of the intellectual property to contribute to innovation and promote public health.

Ensuring that innovation and health policies are correctly balanced between the need to incentivise drug development and the need to ensure medical technologies are widely accessible will be key to addressing the future dangers of global and localized epidemics. Several elements of the IP system touch both on innovation and on access.

Both the international and national intellectual property regimes, therefore, mandate a number of policy options otherwise known as flexibilities that allow countries to pursue public health objectives to improve access to medicines. For access to medicines to increase, policies relating to health, trade, and intellectual property should not be created and implemented in isolation, but together and in reference to one another. The National Intellectual Property Policy 2019 endeavours to cure this.

It is a target of Sustainable Development Goal (SDG) 3 to "ensure healthy lives and promote well-being for all". Under this Goal, the global community commits to end the epidemics of communicable diseases by 2030, aims to achieve universal health coverage and to provide access to safe and effective medicines and vaccines for all. It explicitly pledges to "support the research and development of vaccines and medicines for the communicable diseases and non-communicable diseases that primarily affect developing countries, provide access to affordable essential medicines and vaccines, in accordance with the World Trade Organization (WTO) Doha Declaration on the TRIPS Agreement and Public Health of 2001 (Doha Declaration), which affirms the right of developing countries to use to the full the provisions in the WTO

Agreement on Trade-Related Aspects of Intellectual Property Rights regarding flexibilities to protect public health and, in particular, provide access to medicines for all."

Whereas Article 27 of the TRIPS Agreement required that patents must be "available for any inventions, whether products or processes, in all fields of technology" including pharmaceutical products (such as a new chemical compound with medicinal effect) and processes (such as a method of producing the medicine); Least Developed Countries (LDCs) like Uganda are presently exempt from granting patent exclusivity to pharmaceutical compositions up to January 2033 or until they graduate from the LDC status, whichever is earlier and can delay implementation of all TRIPS provisions until July 2021. The TRIPS Agreement specifies that WTO Members are free to determine the appropriate method of implementation of TRIPS standards within their own legal practice. These policy options are often referred to as "TRIPS flexibilities".

With the COVID-19 pandemic raging, Uganda can take advantage of these flexibilities which were included in the Industrial Property Act, 2014 in particular the Act excludes pharmaceutical products from patent protection, provides for compulsory licensing of patents to meet public health crises while building local manufacturing capacity in the pharmaceutical sector. Whilst in normal circumstances intellectual property rights' (IPR) holders are granted protection over their intellectual property (‘IP') against third-party use, the COVID-19 pandemic has created an unprecedented situation whereby patent holders may be forced, even temporarily, to allow third parties to use their patents in the public interest including importation, manufacture, and export of patented pharmaceutical inventions.

This collaboration among players of various stages of the development of innovation can be accomplished by transactional licensing, or other forms of open-source collaborations.

The writer is the Registrar General, Uganda Registration Services Bureau

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