COVID-19 | Covid-19 vaccines and patent rights: now what?

In record time, and contrary to what has happened with the timing of other vaccines, technical solutions have been found to immunize the world population of the Covid-19 virus.

So far, the vaccines that are most effective are those of the pharmaceutical companies Pfizer, AstraZeneca and Moderna, which are already in distribution worldwide.

What is behind these vaccines in terms of intellectual property rights, namely patent rights or licensing or compensation schemes?

Although it is not publicly known what the agreements of the originator pharmaceutical companies with the States are, it is clear, on the one hand, that these agreements do exist – insofar as the stakeholders themselves (companies and States) mentions them – and, on the other hand, that the patent applications associated with these vaccines are in progress, and it is now possible to conjecture how the agreements between the same actors will be after the granting of patents, in the sense of possible licensing schemes or compensation to pharmaceutical companies that have reached the technical solutions of these vaccines.

Taking into account the utmost urgency in administering vaccines to the world population, it is known that pharmaceutical companies have reached an agreement with States to manufacture and distribute these vaccines, but apparently the technical content of the vaccines has not been revealed or assigned to the States by such companies. Thus, these are mere commercial agreements, in which the States acquire vaccines.

The questions that arise from now on will be different when it comes to intellectual property.

On the assumption that the patents associated with these vaccines will be granted, what modality will be applied: licenses in favor of States? Compulsory licenses? Compensations? The so-called voucher system?

It is not also yet publicly known what will be followed by pharmaceutical companies and States, but everything points to not applying compulsory licensing schemes or voucher systems – basically, a free transfer of the patent to the State in exchange for extending the validity period of another patent from the same company, at its choice –this is because the commercial agreements already signed between pharmaceutical companies and States do not anticipate these modalities.

What will then be on the table will be the negotiation of licenses for the use and exploitation of patents in favor of States – which, in turn, may sublicense to third parties, allowing a larger industrial production of vaccines – or the maintenance of commercial agreements between pharmaceutical companies and States.

What does not seem likely is that there are patent assignments to the States, without any financial compensation to pharmaceutical companies, namely the so-called reward system, i.e. a compensation award granted by States to the companies that developed and achieved the technical solutions of the vaccines.

Although there are those who sustain that patents should be freely assigned to States or free licenses should be established, given the large financial investment of States attributed to the research and development of these vaccines, we believe that companies will not abdicate of the defense of their intellectual property, especially in a context of a future and expected entry of generic drugs (in this case, vaccines) on the market.

Intellectual property, which is one of the biggest assets of companies, is a fair compensation, in the case of patents, to pharmaceutical companies for the high cost of research and development programs, with a real and very relevant benefit for the entire community through the public disclosure of scientific progress associated with patents. The temporary monopoly (market exclusivity) that the patent ensures is largely offset by the public disclosure of the technical content of the patents, which decisively contributes to the achievement and development of new and more advanced technical solutions, in the case of the virus that occupies us, will contribute to the achievement of even more vaccines that are effective against new variants of Covid-19 virus.

We conclude that Intellectual property will always play a very important role in the health of the world population, because contributes to scientific development in all countries worldwide.

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Event 28 MAY 2019

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