Position Paper GSL1A_Fanya Putri Ghina Rhaihana Natasha Pitoy

ALSA Indonesia “Improving Accessibility of Patented Medicine in Times of Emergency” Chamber : ​Chamber 1 Team Code :​ GSL1A Name : ​1. Ghina Raihanah (Ghina) 2. Natasha Pitoy (Pitoy) 3. Fanya Putri Dafanti (Fanya) __________________________________________________________________________________________

A highly contagious virus spreads around the world borderless, namely COVID-19, and The World Health Organization ("​WHO​") itself as a specialized health agency of the United Nations has declared it a pandemic because of the continuity in the number of positive cases every day.1 Nonetheless, some sectors see this situation as a way to make a high profit, and pharmaceutical companies, universities, and government-funded research worldwide are competing to develop new drugs or vaccines to tackle the COVID-19 Pandemic. Thus, some complications occur amidst the Pandemic due to several causes to balance intellectual property rights, notably patent rights and the public demands. ​Firstly​, to make all sectors, and especially patent owners, ​collaborate in researching and developing the vaccine, erasing the gaps of knowledge, and licensing other manufacturers outside the owners' team to develop them, so it would be more effective. ​Secondly​, the patent's ownership and funding incentives if they are collaborating in developing the vaccine. When they are distributing and manufacturing the vaccine, they will reap profits, and then who will get the most out of it?

Primarily if their patents are known internationally. Therefore, they will receive royalties from each country and exploit people to maximize their earnings. It is achingly obvious that such competitiveness and profit-oriented companies in the world are risking to find new vaccines for the COVID-19 quickly and the affordability of the prices.

Hence, in light of such urgency to overcome the COVID-19 Pandemic, such a monopoly mentioned earlier would be proven not always to occur. Recently, the World Health Organization launched the COVID-19 Technology Access Pool (“​C-TAP​”), a “pledge of commitment made under the Solidarity Call to Action to voluntarily share COVID-19 health technology-related knowledge, intellectual property and data”.2 C-TAP would harness relevant data on the existing platforms such as the Medicine Patent Pool (“​MPP​”) and the UN Technology Bank-hosted Technology Access Partnership.3 C-TAP’s existence is entirely “valid” due to ​TRIPS Article 30 of Section 5: Patents as this provision allows researchers to use a patented invention for research and innovation based on a more rounded comprehension of the patented invention. Moreover, this provision also exempts Members in a way that allows generic pharmaceutical manufacturers to use the patented invention in obtaining marketing approval. Nonetheless, such privilege could only be exercised under certain requirements4, such as by providing adequate remuneration to the patent holder under the pretenses that the third party has shown effort to obtain a voluntary license (however, the

​("The WHO Just Declared Coronavirus COVID-19 a Pandemic", 2020). ​(“COVID-19 Technology Access Pool”, 2020).

3 ​Ibid.​ 4 ​The TRIPS Agreement​ 1995, Sec. 5, Art. 31.

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countries’ government could overturn decisions and grant ​a compulsory license5, if voluntary license is unachievable). Furthermore, regarding the discrepancy of both philosophies of patent exclusivity and the Patent Pool’s existence, ​TRIPS Article 31(b)6 mentions exemptions of actions when being in a state of “national emergency” and “circumstances of extreme urgency”, and additionally, ​WIPO ​acknowledges patent pools to have a positive impact on innovation.7 Therefore, showing that Patent Pool as an initiative, is the epitome of a realized moral imperative in facing and conquering COVID-19.

In Indonesia's law, it is regulated in ​Article 111 of the Law Number 13 of 2006 regarding Patent, as stated that the government could use patent on pharmaceutical products in public health emergency of international concern.8 It is further regulated in Section 2, Article 2 of Governmental Decree Number 27 of 2004, that reaffirmed the possibility of government using patents for the public interest.9 The Governmental Decree has also prepared a mechanism for compensation to the patent holders, and if they are not satisfied with the amount of payment, there is also a mechanism to file a lawsuit with the Commercial Court of Indonesia. Indonesia has addressed its stance to ensure that multilateral efforts ​must be actively maintained in pursuing access to COVID-19 vaccines and medicine at affordable rates, given how strict access to patented drugs can be under existing regulations.10 There are several attempts to enliven Indonesia's interests. ​First​, Indonesia has joined the WHO's solidarity call to make a voluntary patent pool to eradicate the gap of knowledge with other countries from manufacturing, research, to quicken the development of the COVID-19 vaccine. ​Second​, as the largest vaccine producer in Southeast Asia, Indonesia has chosen to partner with various producers to develop possible COVID-19 vaccines. Rather than competing with other countries to catch the market, Indonesia has thrown itself into multiple collective efforts to find and manufacture a vaccine.11 Therefore, we believe in order to uphold accessibility rather than exclusivity, notably amidst the Pandemic, where there is a compulsion to develop and find new vaccines quickly, we must do several actions that are necessary to be executed in the nearest time possible by all countries: 1. Emphasize the role of the Patent Pool ​as a way to develop a new vaccine for COVID-19 Pandemic following the World Health Organization calls and the existing platform, the MPP, which has expanded its mandate to handle the COVID-19 Pandemic.12 2. Encourage all countries to prepare to issue compulsory licensing because it could take a long time and ensure a precautionary collaboration with big pharmaceutical companies to prevent undermining investment for future treatment.

Conclusively, through a patent pool that is supported by the government, the pharma industry and its generic manufacturers, as well as preparing to issue compulsory licensing amidst the COVID-19 Pandemic, we could improve the accessibility of patented medicine in times of emergency for the greater good in satisfying urgent public necessities. ​Ibid.​ ​The TRIPS Agreement​ 1995, Sec. 5, Art. 31, Verse (b).

7 (“Patent Pools and Antitrust - A Comparative Analysis”, 2014).

8 ​Patent​ 2006, Art. 111, Legislation 13/2006.

9 ​Procedure of Patent Implementation by the Government​ 2004, Sec. 2, Art. 2, Governmental Decree of Republic Indonesia 27/2004.

10 ​(Post, 2020) 11 ​(Post, 2020) 12 ​(Worley, 2020) 5 6

BIBLIOGRAPHY Regulation Patent 2006, Art. 111. Legislation 13/2016.

Procedure of Patent Implementation by the Government 2004, Sec. 2, Art. 2.

Governmental Decree of Republic Indonesia 27/2004.

The TRIPS Agreement 1995, Sec. 5, Art. 30.

The TRIPS Agreement 1995, Sec. 5, Art. 31.

Journal and Article Post, T. (2020). ​Indonesia teams up with global manufacturers in vaccine hunt​. The Jakarta Post.

Retrieved 27 July 2020, from https://www.thejakartapost.com/news/2020/07/27/indonesia-teams-up-with-global-ma nufacturers-in-vaccine-hunt.html​.

Post, T. (2020). ​Indonesia rallies to keep COVID-19 vaccines, drugs affordable​. The Jakarta Post.

Retrieved 27 July 2020, from https://www.thejakartapost.com/news/2020/05/01/indonesia-rallies-to-keep-covid-19vaccines-drugs-affordable.html​.

Worley, W. (2020). ​COVID-19 puts a spotlight on the Medicines Patent Pool.​ Devex.

Retrieved 27 July 2020, from https://www.devex.com/news/covid-19-puts-a-spotlight-on-the-medicines-patent-pool -97461​.

The WHO Just Declared Coronavirus COVID-19 a Pandemic​. Time. (2020). Retrieved 27 July 2020, from ​https://time.com/5791661/who-coronavirus-pandemic-declaration​.

COVID-19 Technology Access Pool​. World Health Organization. (2020). Retrieved 30 July 2020, from https://www.who.int/emergencies/diseases/novel-coronavirus-2019/global-research-o n-novel-coronavirus-2019-ncov/covid-19-technology-access-pool​.

Patent Pools and Antitrust - A Comparative Analysis​. World Intellectual Property Organization.

(2014).

Retrieved 30 July 2020, from https://www.wipo.int/export/sites/www/ip-competition/en/studies/patent_pools_report .pdf