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Should Pharmaceutical Institutions Enforce Patent Rights for Covid-19 Vaccine?

Introduction

As the world faces a global pandemic, it has affected all the parameters worldwide and the permanent solution to get human life back from the stand-still is to progress with a successful vaccine. For the development of a successful vaccine, it has to undergo five stages – the first stage comprises of the exploratory phase which involves laboratory research and methodologies to encompass the strategies into the area, thereafter pre-clinical stage, to find out more about the intervention, clinical development which consists of four phases, followed by approval stage and the last stage is the manufacturing process and quality control. In order to derive a remedy for the same, every company is in the race to find the vaccine.

Need to develop a vaccine

Due to the outbreak of novel corona virus, many industry sectors have been negatively affected including tourism and aviation, entrepreneurs, hospitality, automobiles, media and entertainment, railways and real estate. The economies of the world have been hit tremendously and people have faced unemployment, laying off and lack of funds to fulfil their basic necessities. It has brought shock to the entire working system causing changes to the lifestyle of the individuals.

Recognizing the urgent need to develop a safe and effective vaccine for Covid-19 by collaborating with the researchers, scientists and pharmaceutical companies.

Should vaccine be patented or kept generic? 

Considering the resources, infrastructure and manpower used in the research process for the development of the vaccine, such gathered efforts by the pharmaceutical institutions enable them to access the patent rights. The companies who develop the vaccine impose a potential threat on their intellectual property as it may lead to duplication and generic manufacturing of the same products by local drug stores at a cheaper rate and counterfeiting of the products. So to remove the structural barrier and to avoid infringement of drugs, it becomes necessary to obtain patent rights over the production of the vaccine. The upcoming vaccines will also have the benefit of patent protection towards a wide geographical scope.

Section 53 of Patents Act 1970 states that “the tenure of protection of a patent is twenty years from the date of filing of the application for the patent”, thus this will make the owners not only protect the product but also remove competition which will make them a superpower in the market to supersede as a monopoly and can demand the price as they seem fit. Also, these institutions will be able to recover their preliminary expenses after the grant of patent.

On the other hand, it has been of peremptory measure to make the vaccine available to the public. This will have an immediate effect throughout the globe and it would also socially benefit all the developing countries at affordable prices. Moderna President Stephen Hoge said in an interview, “We’re not interested in using that IP to decrease the number of vaccines available in a pandemic.”

Also once a vaccine is developed by a country, the patent protection will be available for 20 years and other companies can only use the vaccine once the tenure ends, thus the process of research and development to obtaining the patent rights is a lengthy and time-consuming process. The world has entered into global inter-dependencies which requires integrated measures to overcome the crisis. An individual may be rich or poor, insured or uninsured, he/she should be protected from the clutches of Coronavirus. With respect to Article 21 of the Indian Constitution, every person has a right to life or personal liberty. Taking into account the current scenario, safety of the people is of utmost importance rather than being profit-oriented. This in turn will lead to mass production and availability would not be a concern.

CONCLUSION

In accordance with the global efforts and complexities to develop and distribute the vaccine, and also considering the domestic legal issues one solution to this dilemma is that the government can initiate by providing monetary rewards to research and development institutions and pharmaceutical companies instead of them applying for the patent, in order to encourage the scientists and researchers to strive towards excellence. Thus, to derive a vaccine, pharmaceuticals should keep in mind the aspects for the betterment of the world rather than solely focusing on their profit and improvement.

REFERENCES

http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps53.html#:~:text=(1)%20Subject%20to%20the%20provisions,from%20the%20date%20of%20filing

https://www.indiatoday.in/science/story/moderna-will-not-enforce-coronavirus-vaccine-patent-during-pandemic-1729804-2020-10-09

About Author – This article is authored by Kayomi Rajeev Tumdi, she is a final year LLB student from M.K.E.S College of Law (Mumbai) and pursuing PGDM in Intellectual Property Rights from NLU Bangalore. She is currently interning at JLJ law office. With specific interest in the field of Intellectual Property Rights & Corporate Laws, she has completed her certification in IP laws from World Intellectual Property Organisation, Cyber Crime and Cyber laws from Asian School of Law, General Course on Insolvency and Bankruptcy Code and Civil drafting.

Also Read – What is Patent? Laws Relating To Patent In India

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