CIPRA – IP POLICY STUDY | PART ONE (JULY 2020)
A COMPREHENSIVE APPROACH FOR ADDRESSING A BALANCE BETWEEN PATENT AND PUBLIC HEALTH IN THE CONTEXT OF COVID-19 PANDEMIC
The unnerving bio-catastrophe of the millennium, the COVID-19 pandemic, throwing out of gears the settled global system in all walks of life of mankind brought to the fore an array of challenges. The containment of the pandemic at any cost prioritising the ‘life’ for ‘living’, gradual shift to phased prioritisation of ‘living’ with ‘no sacrifice of human life’, finding the effective cure for the affected by promoting, supporting, encouraging innovations in the field, global cooperation in ensuring the availability, accessibility and affordability of the health care facilities and a host of challenges are being addressed both at the global level and the national level. The legal instruments guaranteeing the right to health-International & National-, the Nobility of medical profession with Hippocratic oath at the helm, legal regime for approval of the novel effective treatment products & processes, the Intellectual Property regime accommodating the larger public interest in its sweep—paving way for State as well as IP holders to play an active role in facing the challenge—are matters of concern at this juncture.
This paper is an attempt to examine the Patent system playing a proactive role in addressing the challenges. Instead of inappropriately presenting patent as opposed to public health, this paper attempts to examine the patent system as promoter of public health. The paper in chapter 2 examines the situation from human rights perspective, right of healthcare for every human being, constitutional guarantee in India, and the Global distributive Justice as a goal. Can there be a legal obligation on the global community or the haves’ in the form of duty of justice?. The third chapter addresses the developments in diagnostics process for the detection of the COVID-19 and the treatment for the same through adopting the existing health care system and at the same time developing newer innovative products and processes. Absence of a vaccine is a bigger challenge and the scientific community’s response has been significantly encouraging. The incentive in Patent system has encouraged innovators to file patent applications. The International Institutional involvement, the response by Nations, the active role of the Industry in making available the products or processes in the patent regime as well, and process for ensuring technology transfer are some of the issues addressed later.
The patent system, while incentivising the innovator, has structured itself to take care of the health emergency of the kind. The paper examines the Indian Patent system that can be utilised at every stage of challenge by the Government to ensure that availability, accessibility and affordability of health care products and processes gets top priority.
In an emergency of this magnitude, can international obligations of enforcement of IPR be suspended by the member state is also addressed by the paper.