Abstract
This paper considers how vaccine technology to meet the challenges of the COVID-19 pandemic can be made available to increase the production of vaccines. Its primary focus is on trade secrets, which are one of the main intellectual property rights protecting the complex manufacturing processes of vaccine production. The compulsory licensing of trade secrets presents some unique obstacles and consideration is given to some practical solutions that might balance the interests of technology owners and the public interest in increased access to vaccines. In particular, this paper suggests that to make the currently discussed proposals on accelerating the production of COVID-19 vaccines, including compulsory licensing of patents and the IP waiver, work, an additional mechanism of compulsory licensing of trade secrets is required. It is believed that a proposal for a new mechanism of compulsory licensing of trade secrets coupled with a discussion on the content of such licences, challenges that would need to be addressed and the potential wording of such a licence, would provide useful guidance to governments on how to make their compulsory technology transfer mechanisms more effective.
Highlights
On 30 March 2021, 25 heads of government and international agencies came together in an extraordinary joint call for a new international treaty for pandemic preparedness and response: There will be other pandemics and other major health emergencies
While the COVID-19 pandemic has escalated the problem of access to vaccines, long before this pandemic, it was recognized that access to vaccines in low- and middle-income countries (‘LMICs’) lagged far behind access in higher-income countries.[7]
Even if we start from the premise that trade secrets should be shared, another challenging question is how should ‘trade secret sharing’ or their compulsory licensing be carried out? how might this be achieved in a way that balances the needs of the public and fairness to trade secret rights holders whose fragile rights are to be put into the hands of third-party licensees? In this respect, most of the proponents of the intellectual property (IP) waiver, compulsory licensing or enforced technology transfer are notably silent.[23]
Summary
On 30 March 2021, 25 heads of government and international agencies came together in an extraordinary joint call for a new international treaty for pandemic preparedness and response: There will be other pandemics and other major health emergencies. While the first enormous challenge of swiftly developing a vaccine against this coronavirus has been successfully overcome by several pharmaceutical companies[2] and a number of vaccines are in the pipeline at various stages of development,[3] the second, no less significant hurdle, is to manufacture the required number of vaccines and distribute them across the globe equitably and affordably. This latter hurdle has proven to be a serious challenge. This problem, has raised a key question, i.e. how can we accelerate the production of COVID-19 vaccines and ensure their equitable worldwide distribution at an affordable price?
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