Coronavirus: Will intellectual property be a hurdle in India's fight against COVID-19?

India's coronavirus cases have crossed 3,000, and governments - Central as well as states -  are bracing up to face possible surge in infections requiring large scale hospitalisations and intensive care units (ICUs). Efforts are also on war-footing to procure more protective gears, diagnostic kits, ventilators and so on. One missing piece could be the country's preparedness to build local capabilities to supply intellectual property rights (IPR) protected products, ingredients or spare parts that are essential in the fight against COVID-19, if the situation warrants it. If the UK, Netherlands and Italy face some supply issues, India is no better placed.

Last week, international media reported that politicians in the UK and Netherlands accused Swiss multinational Roche, world's leading diagnostic kit maker, of withholding the chemical formulae for a reagent, a buffer used in its polymerase chain reaction-based test for COVID-19. The politicians blamed Roche's inability to supply sufficient volumes of this reagent as one of the reasons for delay in the scaling up coronavirus tests in their respective countries. Apparently, the politicians wanted Roche to share the chemical formulae to allow local firms to mass produce the reagent.

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Around the same time, reports from Italy said that a local firm made 3D printed copies of a particular value that goes into ventilators after an Italian hospital ran out of supplies and was struggling to run its ventilators amidst a surge in patients needing intensive care. The original spare part from the ventilator maker reportedly costing $11,000, was not available, while the cost of the copy was just $1.

Roche was well within its legal rights to not share its IPR-protected formulae, and the ventilator maker Intersurgical must have seen its IPR violated. However, the fact remains that the problem arose in the first place due to the heavy demand, making timely supply of essential items in adequate quantity, a challenge for the IPR holders and posed a bigger threat to governments in a public health emergency.

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Incidentally, two of the medicines, Fevipriavir and Remidisivir, which are undergoing clinical trials to see if they can be repurposed for COVID-19, are patent protected in India. Unless the patent holders insist upon its IP rights, access to these medicines should not be a concern for India as the domestic generic industry has proven its ability to produce low cost medicines in short time. But several countries are not depending on the magnanimity of IP holders. Some have already gone ahead and issued orders to facilitate compulsory licenses for any IP protected products for the use of COVID-19. Chile is one, Israel is another. Even Germany is known to have amended its Patent Act to facilitate compulsory licensing.

The World Health Organisation's (WHO) coronavirus treatment protocol has a lengthy list of products that are needed at different stages of the disease outbreak. World Trade Organisation (WTO) estimates the size of global trade of COVID-19 related medicines and medical products to be $597 billion. While patents on medicines are rather well known and better tracked, the same may not be true for most other products, the IPR status of many of which are not even clear.

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Carlos Correa, Executive Director of developing world centric think tank South Centre says global organisations like WHO, WTO or World Intellectual Property Organisation (WIPO) should support WTO member countries that invoke the 'security exception' contained in Article 73 of the Agreement on Trade-related Intellectual Property Rights (TRIPS Agreement), to take 'actions it considers necessary for the protection of its essential security interests' in the wake of COVID-19 threat. "The use of this exception will be fully justified to procure medical products and devices or to use the technologies to manufacture them as necessary to address the current health emergency," he points out.

In fact, in an open letter to the heads of WHO, WTO and WIPO, Correa said that in their official capacities, they should "support developing and other countries, as they may need, to make use of Article 73(b) of the TRIPS Agreement to suspend the enforcement of any intellectual property right (including patents, designs and trade secrets) that may pose an obstacle to the procurement or local manufacturing of the products and devices necessary to protect their populations".

India's response is awaited.

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INDIA CORONAVIRUS TRACKER: BusinessToday.In brings you a daily tracker as coronavirus cases continue to spread. Here is the state-wise data on total cases, fatalities and recoveries in one comprehensive graphic.