Why Patent Law Doesn't Do Innovation Policy

Thambisetty, Sivaramjani

doi:10.2139/ssrn.2328173

Cited by 2 publications

(1 citation statement)

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“…186 The argument that the COVID-limited, temporary TRIPS IP waiver will de-incentivise R&D in all other areas of science/technology (where IP protections remain unaffected) is thus unconvincing. 187 Defenders of the status quo in the COVID-19 context tend to under-state the risks of the current pandemic for global public health and over-state the risk to the overall IP system from the temporary COVID-focused IP waiver proposal. In fact, as we note above, there is a danger that the IP system could create the wrong incentives if the market is left to regulate such issues.…”

Section: Analysing the Argument That The Trips Waiver Will Weaken Innovation Incentivesmentioning

confidence: 99%

The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic

et al. 2021

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The structure of global intellectual property law as incorporated in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is implicated in the current lack of COVID-19 vaccines, medical equipment, medicines and diagnostics needed to combat the pandemic. In this paper, we elucidate the legal issues surrounding the 'TRIPS waiver' proposal initially put forward by India and South Africa in October 2020, which, as of June 2021, is supported by more than 60 states. We analyse the different intellectual property rights relevant to the proposal -focusing primarily on patent rights and trade secrets -which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, in terms of both procedure and legal substance. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that both incentives and mandatory mechanisms are needed.We make two arguments to this effect: first, the TRIPS waiver is a necessary and proportionate legal measure for clearing intellectual property (IP) barriers in a direct, consistent and efficient fashion, enabling the freedom to operate for more companies to produce COVID-19 vaccines and other health technologies without the fear of infringing another party's IP rights and the attendant threat of litigation; and second, the TRIPS waiver acts as an important political, moral and economic lever towards encouraging solutions aimed at global equitable access to vaccines, which is in the wider interest of the global public. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable production and access.

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Section: Analysing the Argument That The Trips Waiver Will Weaken Innovation Incentivesmentioning

confidence: 99%