Compulsory licensing is not the answer
As the race to find ways to combat the pandemic intensifies, competition laws and state aid laws should reflect the crisis, but compulsory licensing is unlikely to lead to victory, argues Robin Jacob.
“Silent enim leges inter arma”: Cicero used these words in his speech on behalf of Titus Annius Milo, who was on trial for murder in 52 BC. They are loosely translated as: “In times of war, the law falls silent.”
Lord Atkin did not agree. In Liversidge v Anderson (1942), decided in the middle of World War 2, he said: “In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”
Cicero or Atkin?
What then of IP in a time of pandemic? Cicero or Atkin? Can governments simply override all IP rights which cover anything to do with COVID-19? Or can they do so if the law allows?
The question applies to patent rights for medicines, vaccines and testing kits, but other rights too: design rights (eg, in ventilators), or trade secrets (eg, recipes for reagents to make tests). And what about the laws of competition and state aid—should they be shelved or ignored?
COVID-19 is so dangerous and destructive that there is no difficulty in deciding the key guiding principle. No rights (not just IP) should stand in the way of preventing its spread, detection, treatment, cure or, ultimately, making the world safe again through vaccinations.
But equally, governments cannot without lawful power seize, or ignore property rights. Just as in war where laws entitle governments to requisition property, the rule should be that where property is taken or used the owner should have compensation rights.
Governments should never act as if they are above the law, and that is why competition laws and state aid laws should be changed for crisis-related arrangements.
Some competition authorities merely say they will not interfere with such arrangements. It is not for the police to say they will not enforce the law. If the law is bad or inappropriate, it should be changed.
Another way governments might intervene is via compulsory licensing, and there is a huge clamour for this by various non-governmental organisations and UN agencies.
”Compulsory licensees are just as avaricious as patent holders, if not more so, since they are not in the business of trying to find new medicines or new uses for old ones.”
There should be no surprise here—compulsory licences have long been favoured by such bodies. But compulsory licences have seldom worked well. Compulsory licensees are just as avaricious as patent holders, if not more so, since they are not in the business of trying to find new medicines or new uses for old ones. Some become very rich indeed.
It is particularly irrelevant to talk about compulsory licences for COVID-19-related inventions at the moment. The big target, a vaccine or vaccines, is simply not suitable at all for compulsory licences.
There is no successful vaccine yet. It is doubtful whether one would get patent protection (and certainly not for around five years from now). Patents have never been a significant factor in the vaccine business.
Vaccine production is difficult and requires a lot of skill and knowhow—not just a formula. It is not a very profitable business in itself, which is why there are relatively few vaccine companies around the world.
In reality, there is almost certainly no IP right over a vaccine which could be the subject of a compulsory licence. Nor is there any potential candidate compulsory licensee which would have the resources to exercise such a licence, even supposing there was a right which could be licensed.
No evidence of profiteering
As for medicines for treating COVID-19—although there are some medicines which help, there is nothing like a cure. Before one even starts thinking about compulsory licences one has to ask what the prices and demand are. There is, as far as I know, no evidence that anyone is seeking outrageous profits.
With regard to testing kits—and again there is no evidence of profiteering—the real problem is that there is yet to be a reliable, near-instantaneous test for COVID-19. If and when there is, it is doubtful the holder of any IP right would be able to profiteer. The pressures imposed by governments and public opinion would prevent it.
The reality is that IP has little to do with coping with the crisis. We should be grateful that there are mighty pharma companies with the research facilities that might find a vaccine or cure.
Robin Jacob is the Sir Hugh Laddie Chair of Intellectual Property Law at University College London (UCL). In May he presented a webinar “IP rights for treating, diagnosing and preventing COVID-19” on behalf of UCL’s Institute of Brand and Innovation Law. He can be contacted at: email@example.com
Image: Shutterstock.com / Enriscapes