Abstract
The Declaration on Trade-Related Intellectual Property Rights (TRIPS) and Public Health Agreements want to promote the balanced interpretation and implementation of its provisions and promote universal access by assisting WTO members to protect public health rights. Two years will soon pass, and the emergence of new variants of COVID-19 shows that the virus will not stop at national borders. However, vaccines are gradually entering and almost monopolised by industrialised countries. If Jonas Salk thought in the 1950s that patenting his polio vaccine was like patenting the sun, the problem appearing is that today's patent holders do not think so. The COVID-19 vaccine is owned by biotech companies, universities, research institutes or pharmaceutical companies. The purpose of this research is to analyse, through a normative juridical approach, the requirement for patent holders to protect their intellectual property rights if they are to remain competitive in the marketplace. Not to forget that they must pay patent fees as a percentage of the final price of the vaccine, which is a significant benefit to the economies of the countries where they are located. While for developing countries, the best solution would be to produce their vaccines. With industrial property rights, it seems impossible to transfer the vaccine technology on COVID-19. That is why some developing countries (South Africa and India have the support of many other developing countries) have filed a complaint with the WTO, requesting a waiver of property rights under Article 31 of TRIPS in order to produce a COVID-19 vaccine on a large scale and at an affordable price.
Highlights
When a drug or vaccine proves that it can prevent viral infections, it can be protected by the patent system granted to its inventor
This study aims to gain a deep and constructive understanding of the fact that an advanced application of the Trade-Related Intellectual Property Rights (TRIPS) Agreement and the Doha Declaration on Public Health could constitute a central point for better access to medicines and vaccines by developing countries
By examining the patent history and the different intellectual property regimes that existed for medicines before TRIPS came into force, we believe it is easier to understand how TRIPS strengthens the international intellectual property protection regime, in the pharmaceutical area
Summary
When a drug or vaccine proves that it can prevent viral infections, it can be protected by the patent system granted to its inventor. The Obligation of Non-discrimination in the Field of Technology In addition to requiring protection for processes and finished products, Article 27(1) of the TRIPS Agreement prohibits discrimination in the field of technology This prohibition relates to any recourse to extraordinary measures that member states may wish to limit protection in the pharmaceutical field to protect public health. The TRIPS Agreement provides, independently of any abuse, conditions under which compulsory licenses may be granted by Members (Article 31 of the TRIPS Agreement) This provision sets clear boundaries for the exception: prior negotiation with the right holder; duration and scope of the license to be strictly limited according to need; non-exclusive and non-transferable nature of the license (except with goodwill); the license granted primarily for the supply of the market of the authorising Member; adequate remuneration of the patentee, subject to judicial review or review by an independent higher authority.
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