When the global community is wrecked by unprecedented corona virus, only solace can be expected out of the well guided labor of pharmaceutical sector. The manufacturing of vaccines following research and development, succor human beings in fighting against deadly corona virus. Pharma giants shoulders major responsibility in fortifying human lives.

However, the water tight compartment of Intellectual Property Rights (IPR) does not allow procurement of vaccines, unless hefty amounts are paid in proportion to investment. Accordingly, stringent IPR (patent) regime is erecting walls for the developing economies, as far as lifesaving medicine procurement is concerned. This has sparked the debate over loosening up robust IPR regime to protect indefeasible Right to Life. The Pharma sector is expected to come forward and waive patent protection for the noble cause of saving human lives. Preservation of human lives is the need of hour, rather earning profits out of sweat of brow.

International Scenario
Article 3 of the Universal Declaration of Human Rights (UDHR) and Article 6 of the International Covenant on Civil and Political Rights (ICCPR) guarantees Right to Life. Moreover, Article IX (clause 3 and clause 4) of Marrakesh agreement pitches for waving off patent in certain circumstances of exceptional nature. Therefore, pharma companies are expected to work in nexus with their government, in strict observance of these international instruments, in their respective territory.

According to Wall Street Journal, United States will support waiver of Intellectual Property Rights.[i] Ostensibly, this decision has been taken in the wake of allowing developing countries to augment COVID immunization program. This is a welcome step to cap the exorbitant prices charged over patented vaccine, especially in the benefit of Nations like India. However, the problem does not end here.

Even when the United States has agreed to lift their IPR cover on vaccines, as discussed above, still developing economies lacks ability to come up with vaccines in reasonable time, since the scarcity of raw material is of major concern. Also, it has been claimed that they lack manufacturing capabilities to snowball production of vaccines.[ii]

Indian Context
Over the couple of months, India has witnessed record corona cases amidst high demand for getting inoculated. It is expediting its vaccination program in order to prevent billion plus population. Article 21 of the Indian Constitution encompasses Right to Life within its sweep. Therefore, State is acting under legitimate expectation to safeguard its population interest. The collective effort of legislative will and judicial wisdom is going to ensure win over this seemingly insurmountable disease.

Still, we need to overcome some impediments, where we are lacking. Indian Government should mull granting compulsory licenses over its patented medicines/vaccines immediately. Recently, Hon’ble Supreme Court In Re: Distribution Of Essential Supplies And Services During Pandemic has pitched for allowing compulsory license.

It observed that:
According to the 2001 Doha Declaration, TRIPS should be interpreted in a manner supportive of the right of members to protect public health and to promote access to medicines. It recognizes the right of WTO members to use the full extent of the TRIPS flexibilities to secure this objective. Para 5(b) of the Doha Declaration provides the freedom to each member to grant compulsory licenses and to determine the grounds on which the licenses are granted.

Para 5(c) leaves it up to each nation to determine what constitutes a national emergency or extreme urgency. In the context of the COVID-19 pandemic, we note that several countries such as Canada and Germany have relaxed the legal regimes governing the grant of compulsory licenses.

Certainly, this initiative of Indian judiciary will inspire patent controller to consider conferring compulsory license. Section 92 of The Patent Act, 1970 is an enabling provision, which allows any interested manufacturer, to seek compulsory license over patented product, so as to develop vaccine required to satisfy public health emergency. Recently, Natco has filed compulsory license application before Patent Controller of Mumbai, to manufacture Baricitinib (used for COVID19 treatment).[iii]

Hence, the patent controller should accede to this, to ensure its affordability and wide distribution in India. Recently, our commerce secretary has announced that we can expect soon decision on waiver of IP cover, inclusive of waiver on domestically made Covaxin. [iv] This will certainly bring satisfaction to the masses in India, who are expecting first and second jab of vaccines, within reasonable time.

Concluding Remarks
Profits can be generated later as well, but the existing situation demands flexibility in the applicability of IPR rules and regulations. In the existing state of affairs, the Indian government is justified in offering medicines/vaccines at subsidized rate, at the touchstone of right to life. People are gasping for life and therefore government is ensuring instantaneous availability of essential medicines. No matter, how much difficult the task is but State machinery will toil hard, in keeping with, indispensable Right to Life.
(Views expressed are personal)

References:

1. https://www.wsj.com/articles/u-s-backs-waiver-of-intellectual-property-protection-for-covid-19-vaccines-11620243518
2. https://timesofindia.indiatimes.com/india/despite-patent-waiver-pledge-from-west-indias-billion-will-have-to-wait-months-for-vaccine/articleshow/82436737.cms
3. https://www.livelaw.in/news-updates/natco-pharma-files-application-seeking-compulsory-license-for-covid-drug-baricitinib-173627
4. https://indianexpress.page.link/4fseV6cqddN8y3di8