Compulsory Licenses and other regulatory incentives to meet the challenges of the pandemic
DIALOGUE OF EXPERTS – part III
IPR University Center arranges an upcoming online seminar series focusing on various IPR matters. The seminars feature academic experts and top practitioners in the field of IPR.
Please check with your own university’s professor if you may collect study credits based on our lecture series. Dialogue of Experts-series consist of 5 online seminars.
Dhanay Cadillo Chandler, Post-Doctoral Researcher, University of Turku, Visiting Professor at LUISS School of Law, Italy
Uh-Oh We are in Trouble! Compulsory Licenses v Data Exclusivity in the EU…
This presentation provides an overview to the current European situation in regards to the use of compulsory licenses, and to the TRIPs waiver proposed by India and South Africa to the WTO. Considering the complexities of the EU system to both approve pharmaceutical products, the use of a TRIPs flexibility is paramount to address the exceptional circumstances of the COVID-19 pandemic. Understanding the power of data exclusivity regimes to deter or interfere with the use of TRIPS flexibilities, such as compulsory licenses for public health emergencies, is essential when considering legal reforms intending to balance opposing but complementing rights. Even when the TRIPs Agreement largely harmonized IPRs in most part, other exclusive rights emerging from this remain of national implementation. Case in point: Data exclusivity or the protection of undisclosed information. The fragmentation layered upon TRIPs in regards to the data exclusivity protection suggests that making use of TRIPs flexibilities is not an easy task. Thus, the survival and coexistence of patent rights and the right to health in the EU will require from profound recalibration in terms of goals and purpose. The presentation explores the links between the international IP framework, patents, and the pharmaceutical regulatory regimes. It also opens the question as to the meaning of the global common good approach embedded in the COVID-19 vaccine.
Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice, Seattle University School of Law
Global Intellectual Property Governance and Covid-19
Communicable diseases know no boundaries. The Covid-19 pandemic is an unwelcome and illustrative textbook example of why vaccine availability should be viewed as a global public good. A global intellectual property (IP) governance framing of the pandemic can give real meaning to TRIPS Article 7 (“Objectives”), which provides: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.” Furthermore, TRIPS Article 8 (“Principles”) acknowledges that member states can “adopt measures necessary to protect public health” among other goals. Based on the premise that nations can and should cooperate to optimize the response to the pandemic, this treaty language provides ample room for arguments in favor of compulsory licensing waivers.
In addition to the compulsory licensing waiver proposals currently under discussion, other regulatory incentives are part of the global IP governance mix. For example, multi-stakeholder partnerships play an increasing role in the delivery of public goods in many development sectors, including but not limited to public health. Public-private partnerships (PPPs), in particular, are an important feature of global development efforts involving IP. This presentation will explore some of the current efforts of product access PPPs to address the global pandemic, driven by their specific non-profit missions to increase access to global public goods. It will examine some of the benefits as well as the limitations of this hybrid governance approach.
Heidi Adler, Director, Intellectual Property Rights, Orion
Picture: Steven Cornfield, Unsplash
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