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In this article, we take you to our publications to date that explore important issues around IP rights in the COVID-19 pandemic.
IP rights in the spotlight
With the timely supply of effective COVID-19 vaccines insufficient to meet global demand, there has been speculation that the compulsory licence and Crown use (or government authorisation) provisions would be invoked. This from the early stages of the pandemic has thrust IP rights into the spotlight of politics and mainstream debate both in Australia and globally.
The discussion around IP rights and vaccine supply continues to remain of great importance. In May 2021, the United States under the Biden administration, in a surprising move that has not been backed by other high-income WTO members, announced its support for waiving IP rights over COVID-19 vaccines. This is despite COVID-19 vaccine manufacturers raising real concerns that safety could be compromised as a result of the proposed waiver. In Australia, the Federal Government is currently seeking to secure supply of effective vaccines in a bid to end lockdowns that has been the main solution used to prevent transmission to date.
Journeying back in time to May 2020 before an effective COVID-19 vaccine had been made available, Tony Shaw and I co-authored and published a piece in InIP which you can read here. Tony and I explored the unprecedented collaboration shown by industry and researchers in the COVID-19 pandemic, the pro-active efforts to develop vaccines in a short time frame and repurpose known compounds as potential treatments, and the facilitative approach that the Federal Government had taken by expediting or removing regulatory hurdles. We contended that while the compulsory licence and Crown use provisions are not risk free, they are fairly blunt instruments in the current fast-paced environment of this pandemic, and would likely be last-resort measures especially where outcomes could be achieved by other means.
In June 2021, Sarah Matheson AM and I published an article that we co-authored in the Journal of Intellectual Property Law & Practice (Oxford University Press) titled ‘Compulsory licence and Crown use in the COVID-19 pandemic – the Australian perspective’ which you can access from the Oxford journal’s webpage using the following link: Compulsory licence and Crown use provisions in the Covid-19 pandemic—the Australian perspective | Journal of Intellectual Property Law & Practice | Oxford Academic (oup.com). At the time of writing this article, a number of COVID-19 vaccine candidates were shown to be effective in phase II or III clinical trials, and were made available in various countries through, for example, emergency or temporary authorisations.
Sarah and I contended in this article that it may not necessary to invoke the compulsory licence and Crown use provisions in the Patents Act, even though such coercive measures are designed for an emergency such as a pandemic. The reasons for this conclusion are more fully explained in the article published on the Oxford journal’s webpage. However, in essence, we argued it is because a collaborative approach including between industry and government had so far prevailed (p 496). Further, an additional and interesting point we raised in the article as it relates to Crown use provisions was that vaccines are complex and without the transfer of manufacturing information and know-how, and purpose-built manufacturing facilities, it may not have been possible for an unrelated third party manufacturer to produce patented products without the input of the patent owner (p 486). Notwithstanding the above, we also recognised these provisions can be viewed as safeguards in a crisis such as a significant public health emergency by encouraging agreement for the timely licensure, production or supply of necessary patented products (p 497).
I encourage you to read these publications – they provide an in-depth analysis of complex issues around IP rights in the COVID-19 pandemic. Having regard to these publications, this August 2021, even as the government continues its efforts to secure vaccine supply, it is perhaps not surprising that, at least as far I am aware, the Crown use and compulsory licence provisions have not been invoked in Australia to date.