The renaissance of compulsory licenses (in the pharma sector)

Abstract

This paper examines the function of compulsory licensing of the
manufacture of pharmaceutical products. The COVID-19 pandemic has
challenged the pharmaceutical patents and the compulsory licenses in the
pharmaceutical sector. In International law the TRIPS Agreement introduced a
special possibility to use the subject matter of a patent without the authorization
of the right holder. The development of this license was determined by the
public health problems of the least-developed countries (hereinafter referred to
as the LDCs). Today the global pandemic has challenged this system. Some
developing countries proposed that the World Trade Organization temporarily
shall waive intellectual property rights for COVID-19 vaccines. The legislation
of some countries allowed the governance to order the limitations of patents,
but such a solution could harm the legitimate interests of the patent owners. The
global need for rapid treatment of COVID-19 showed that patentees cannot
make pharmaceutical inventions sufficiently available on the market. There are
other solutions like patent pools, by which patent owners could keep control of
the use of their inventions and the patents would be still available for third
parties. This would serve the general public interest, but it is a money and timeconsuming, long-distance cooperation. The broadened use of compulsory
licensing could also expand vaccine manufacturing within the patent system.
Hungary has chosen this path and the new legislation means the renaissance of
compulsory licenses.