LSPN Connect: will nationalism block access to a COVID-19 vaccine?
As scientists around the globe race to find a vaccine for COVID-19, the big question for many is whether competition between nation-states will interfere with citizens’ access to these life-saving treatments.
In an LSPN Connect session, Mark Engelman, head of IP at Hardwicke chambers, explored how foreign patents may foil efforts to ensure fair and equal access to treatments in the UK amid the pandemic ( watch here).
During the session, held on Thursday, October 15, and moderated by publisher and editor-in-chief of Life Sciences Intellectual Property Review , Peter Scott, Engelman explained that while the UK government has always had the right to commandeer UK pharmaceutical patents, it holds no such right when it comes to foreign patents.
So what will happen if the cure to COVID-19 is found, trialled, licensed and manufactured outside of the UK?
“Patents are granted on a country by country basis,” said Engelman, “So yes, countries could use national pharmaceutical patents, which could prevent the use of COVID-19 medicine in the UK,” said Engelman.
The problem, he explained, arises from the position of the UK, and its decision not to trigger an article under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). “There was provision under which the UK could demand access in TRIPS; article 31 permitted a government to access drugs patented in other countries other than the UK.”
Referencing his article published in LSIPR in April, Engelman explained that article 31 was originally designed for the purpose of developing rules for patents and access to medicines.
Consequently, this provision enabled countries to import the patented pharmaceutical without the consent of a foreign patent owner—provided, it paid the patentee. So, for example for drugs such as remdesivir, owned by a US patentee, the UK could have once accessed importation of that drug. The opportunity now no longer exists, however.
This is because, in November 2001, the World Health Organisation decided to waive export restrictions on pharmaceuticals on medicines and diagnostic tests manufactured under a compulsory licence. But negotiations ground to a standstill over the disagreements around specific wording, which allowed 37 World Trade Organization members, including the UK, to opt-out.
As Engelman noted, just before the COVID-19 outbreak, the UK along with other signatories opted out, once again, of triggering article 31, despite petitioning from other countries, including France. “That creates a whole new set of problems—the UK might well have difficulties when trying to obtain distribution,” said Engelman.
“If we invent a drug here, then we are sorted. There will be no third party patentees which will interfere. The problem arises if the invention is invented in another country, even possibly by another British citizen in another country,” he said.
He added this situation now created significant difficulties for the UK. “If the drug was invented in the US, manufactured in India and a third party owned the patent both in the US and India, then those countries could prevent the importation of the drugs into the UK from the country in which it is manufactured. So what do governments do in this situation? They don’t have that automatic right to obtain the drug,” he said.
In addition to exploring the UK’s options under the COVAX agreement, Engelman also explored the role of compulsory licensing, the potential for second use patented drugs, and called for increased collaboration among countries in the fight against the pandemic.
LSPN Connect is the membership programme for the Life Sciences—to watch on this session and for more information on joining, visit www.lspnconnect.com
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