Despite several lockdowns being imposed, adhering to quarantine and social distancing norms, the rising number of cases indicates that the only course of action that will help us overcome the Covid-19 pandemic is the development of an effective vaccine. But the hurdle faced after the development of a vaccine would be its distribution to the world’s population. Governments and private entities are allocating a plethora of funds into the development of a vaccine. It is predicted that a vaccine could be ready next year. In such a situation, would the vaccine be affordable and easily available to the entire population? Intellectual Property laws allow for pharmaceutical inventions to be patented and confers rights of the invention to the patent owner. Conferring the rights to the Covid-19 vaccine to the inventor or owner may result in a monopoly being created over the product. This could mean that the vaccine would be unaffordable to middle and low-income countries.

In the first week of October, a joint statement was issued to the World Trade Organisation TRIPS Council, by South Africa and India. Through this joint statement, a request was made to waive the enforcement and application of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement.

The Trade-Related Aspects of Intellectual Property Rights Agreement (TRIP), which came into force on 1^st January 1995 sets down the minimal standards for regulation and protection of intellectual property. This includes pharmaceutical patents as well.

Article 27 of Section 5 of the TRIPS Agreement provides for ‘patentable subject matter.’ Under this, patents are available for any inventions whether products or processes, in all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial application.

Three exceptions to this are for,

Inventions whose prevention for commercial exploitation is necessary to protect public order, morality and to prevent serious harm to the environment.

Diagnostic, therapeutic, and surgical methods for the treatment of humans or animals.

Plants and animal inventions, other than micro-organisms and essentially biological processes for the production of plants and animals.

Under the TRIPS Agreement, patent owners are conferred rights to prevent unsanctioned parties from making use of the patented process and profiting from it. And this protection conferred shall not expire before completion of twenty years from the date in which the patent was filed.  

These rights under the agreement are subject to limitations, it is allowed under this agreement for members to authorize compulsory licenses. Compulsory licenses allow governments to authorize third party use for non – commercial purposes to benefit the public, without the assent of the patent owner.

South Africa and India’s joint statement was made with an aim to ensure that, the Covid-19 vaccine when developed would be accessible to all. The WTO was requested to make certain that intellectual property rights would not hinder access to the vaccine and to be made promptly available in adequate quantities to meet global demand.  

The Sections which were requested to be waived deal with,

SECTION 1 – Copyright and Related Rights.

SECTION 4 – Industrial Designs.

SECTION 5 – Patents.

SECTION 7 – Protection of Undisclosed Information.

It has also been proposed that the waiver should be in effect until such time the Covid-19 vaccines and medication are easily available and affordable. According to WTO norms assent from member countries is required for this proposal to be passed. The impact of this proposal is crucial. If not passed, the rich countries of the world that can allocate a lot of money towards research and development of the vaccine may choose to market it at exorbitant prices leaving it unaffordable in middle and low-income countries. Therefore, intellectual property rights play a major role in making sure that we are not faced with such a reality.

This article does not intend to hurt the sentiments of any individual, community, sect, or religion, etcetera. This article is based purely on the author’s personal opinion and views in the exercise of the Fundamental Rights guaranteed under Article 19(1) (A) and other related laws being enforced in India for the time being.