& Technology How COVID-19 Changed the Practice of IP Law

BY ARJUN PADMANABHAN

Spring 2023 will mark the three-year anniversary of the COVID-19 outbreak that brought the world to a halt. In those three years, millions died, billions went under lockdown, commerce ground to a halt, and thousands of businesses shuttered permanently. As the world finally returns to business as usual, the question becomes, what does the global response to the pandemic show us about what is—and is not—working with respect to intellectual property law? And how can those lessons help us prepare for whatever comes next?

Obstacles to Overcome

Unsurprisingly, international legal disputes and global politics complicate coordinated responses to health crises. The first year of the pandemic was characterized by a global race to develop an effective vaccine. Intellectual property disputes ran rampant as pharmaceutical manufacturers and government-funded research facilities scrambled to protect their vaccine formulas and manufacturing processes with patents and trade secrets. Many countries with established intellectual property regimes considered using compulsory licenses to force manufacturers to share technology.

Compulsory licenses are a mechanism through which governments can “step in” and practice or license a patent without the patent holder’s consent. Most countries’ patent frameworks contain systems through which the patent holder can obtain restitution for the government’s intrusion into the patent holder’s property rights. But despite the availability of restitution, politicians and patent holders in the global north balked at the prospect of enforcing compulsory licenses. Patent holders knew that these restitution schemes could not be as profitable as the open market. And although some countries like France, Germany, and Canada enacted legislation expediting compulsory licenses, most of the world’s more economically developed countries (MEDCs) did not want to entertain the possibility of starting a process that could lead to a slippery slope of real property rights abuse.

Additionally, the MEDCs pushed for their citizens to have priority access to vaccines and therapeutics. Because they shouldered the bulk of the R&D costs, these countries wanted first access to the fruits of their efforts. On the other hand, many developing countries that lacked the resources or infrastructure to develop and produce vaccines pushed for equitable vaccine distribution among all countries. Their proposals to promote IP sharing and waive international patent agreements like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) during the pandemic was met with fierce resistance.

Tentative Progress

Eventually, most countries and pharmaceutical manufacturers opted into agreements to share technology without the need for compulsory licenses. But these agreements were too little, too late—most were only beginning to bear fruit two years into the pandemic. Equitable vaccine distribution networks like the International Drug Purchase Facility and COVID-19 Vaccines Access were too expensive and too underfunded to respond effectively. And vaccine intellectual property sharing frameworks like COVAX and the International COVID-IP Pledge were crippled by supply issues and a lack of intellectual property donations.

These initiatives were borne out of the panic that marked the early years of the pandemic, and have not been particularly effective. Happily, later initiatives offer promising templates for future pandemic responses. Collaborative initiatives like the Trilateral Cooperation Agreement for the COVID-19 Pandemic, the Pandemic Flu Preparedness Framework, and the Multilateral COVID-19 Task Force promote crossborder, multi-national cooperation among the world’s largest intergovernmental agencies. The exact methods vary from program to program, but all three initiatives are designed to promote global stability at the onset of a pandemic by promoting intellectual property sharing, efficiently developing treatments, rapidly and equitably distributing those treatments, and stabilizing financial institutions to support treatment production and prevent economic collapse.

A Blueprint for the Future

Although it is too early to tell how effective the protocols developed as a result of these collaborative initiatives will be in the face of future health crises, they are a step in the right direction. These initiatives have established a dialogue and communication channel to discuss these sensitive issues.

The 2nd Global COVID-19 Summit was a direct result of this dialogue. The Summit, which occurred in May 2022, raised new financial commitments from member states and corporations that totaled over $3.2 billion. While $2.5 billion of that sum went into COVID-19 response programs, more than $712 million went towards new pandemic preparedness initiatives and a global health security fund at the World Bank.

Panic and politics may have stymied the initial response to the COVID-19 pandemic, but the world understands the threat new pandemics pose to global stability and safety. A new international treaty on pandemic prevention and preparedness is in the works and is expected within the next two years. In it, the global community hopes to evaluate the aforementioned successful and unsuccessful initiatives, and to develop a response framework for future health crises. Hopefully, by learning from the costly lessons of the COVID-19 pandemic, we can safeguard our future from threats of that magnitude. HN

Arjun Padmanabhan is an Associate at Cole Schotz P.C. and can be reached at apadmanabhan@coleschotz.com.