The renaissance of compulsory licenses (in the pharma sector)

Abstract

This paper examines the function of compulsory licensing of themanufacture of pharmaceutical products. The COVID-19 pandemic haschallenged the pharmaceutical patents and the compulsory licenses in thepharmaceutical sector. In International law the TRIPS Agreement introduced aspecial possibility to use the subject matter of a patent without the authorizationof the right holder. The development of this license was determined by thepublic health problems of the least-developed countries (hereinafter referred toas the LDCs). Today the global pandemic has challenged this system. Somedeveloping countries proposed that the World Trade Organization temporarilyshall waive intellectual property rights for COVID-19 vaccines. The legislationof some countries allowed the governance to order the limitations of patents,but such a solution could harm the legitimate interests of the patent owners. Theglobal need for rapid treatment of COVID-19 showed that patentees cannotmake pharmaceutical inventions sufficiently available on the market. There areother solutions like patent pools, by which patent owners could keep control ofthe use of their inventions and the patents would be still available for thirdparties. This would serve the general public interest, but it is a money and timeconsuming, long-distance cooperation. The broadened use of compulsorylicensing could also expand vaccine manufacturing within the patent system.Hungary has chosen this path and the new legislation means the renaissance ofcompulsory licenses.