Pandemic and the Patent System

This article discusses the patent system in the context of the current pandemic. It suggests that the Trade-Related Aspects of Intellectual Property Rights Agreement and the TRIPS-compliant Indian Patent Law could be used to either grant compulsory licences or they could go by the provision that allows the government to use the patent. The road block seems to be the technological capabilities than the patent system itself.

The history of the patent system can be traced back to around 500 years ago, but it was only with the passage of Patents and Designs Act, 1907 in Britain that a modern patent system got established. By modern we mean a patent office was established for examination of the patent specifications. The patentability criteria are: novelty, non-obviousness, and industrial applicability. The supplementary criterion is an enabling disclosure.

The importance of the patent system for pharmaceutical inventions was established by Taylor and Silberston (1973). This is because pharmaceutical inventions are easy to reverse-engineer after their invention and entry barriers to the pharmaceutical industry are low. Vaccines are not a cure but a preventive measure. The usage of vaccines as a preventive measure for bacterial and viral infection is very old. The first vaccine developed was in 1789 for small pox. Today, there are over 30 vaccines for preventing various infections.