As the world races against time to find the vaccine against the coronavirus disease, it will be difficult for the developing world to access it. Medicines and vaccines are generally protectable under the Intellectual Property (IP) category known as “patent” — a protection granting to the holder, for a set period, a right to exclude others not having her/ his consent from the acts of making, using, offering for sale, selling, or importing for these purposes from making, using, or selling an invented product, a process used to get to a product or at least the product obtained directly by that process.
That is to say scientists who would invent Covid-19 vaccine or medicine would seek protection within the countries or regions of their choice through local or international procedures. And according to the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) to which more than 160 countries are parties, once the patent is granted, it lasts for a minimum of 20 years from the date on which the patent application was first filed.
Even if governments allow the use of a patent, for instance, in the case of a national emergency or other circumstances of extreme urgency, such as Covid-19, or grant compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, protection of undisclosed (confidential) information can still be used to prevent others from using one’s invention.
While a significant amount of practical knowledge — “know-how” — is involved in the production of medicines and vaccines, a portion of such knowledge may be kept secret as its releasing is not essential for getting the patents. Know-how may include specific technical comprehension or a certain experience in running the production processes.
Before a pharmaceutical product is released into the market, it must be licensed; a procedure that includes carrying out clinical trials — protectable under the TRIPS.
That is another avenue an inventor of Covid-19 vaccine or medicine would use to control its access by the public. Further, as long as intellectual property rights attached to medicines and vaccines are concerned, there is another protectable element known as “drug delivery device”.
A drug delivery refers to methods, processes, approaches, formulations, technologies and systems of introducing, releasing and/or transporting a pharmaceutical substance into the body in order to achieve a desired effect.
Given that a specific drug can have different effects depending on how and with(in) which device it is delivered, such a device has an IP aspect worth of protection. This means that the protection would cover not only the vaccine or medicine component but also the particular device.
In conclusion, while the protection of intellectual property rights attached to medicines and vaccines is a motivating factor towards getting solutions to Covid-19, it also limits their access by poorer and less knowledgeable communities because production and pricing decisions are always within the hands of the vaccine or medicine originator.
Therefore, if a vaccine or a medicine of Covid-19 was obtained, millions of people would still struggle to access it, unless the April 24 commitment by World Health Organisation and leaders to “ensure all people have access to all the tools to prevent, detect, treat and defeat Covid-19” is shared by the rest of the world and honoured.
Jean Nepomuscene Mugengangabo is a corporate commercial lawyer, and a partner at Landmark Advocates, Kigali. Email: [email protected]