The Chilling Effect of Patent Rights on COVID-19 Vaccines

Photo credits: Sanjay Kanojia/AFP via Getty Images

By Vaidushya Parth

THE on-going dearth and undersupply of vaccines is the cumulative effect of a maximalist IP regime (patents, in this case) that gives its countenance to the system to manoeuvre monopoly rights to hegemonize the pace and production of the pharmaceuticals (vaccines). The result is a chilling effect on the mass production of the vaccines, followed by a major health and economic crisis. “The ability of a handful of powerful companies ... to claim property rights over innovations resulting from the collective processes of modern science, and to use those rights to control the pace of manufacture and thus the price of pharmaceutical products, is not an unfortunate side effect of this system but its goal,” Anne Orford, a professor, wrote recently.

This principle of IP rights maximisation perturbed me for a reason, that the principal objective, that of providing access to healthcare (in this case, the vaccine) to the maximum people, appears to be so low down the priority in the current IP regime.

Factual Premise

When I posed the question why, one of the responses that appeared before me was the “Tragedy of the Anticommons”. Its definition, simplified, is: “[It] is a type of coordination breakdown, in which a single resource has numerous right-holders who prevent others from using it, frustrating what would be a socially desirable outcome.”

What is at issue here is the content of the right to health under Article 21 of the Indian constitution. The Spicy IP blog, in a chain of posts, has discussed IP and political facet of this issue. I, on the other hand, intend to highlight some constitutional concerns based on factual premises.

To begin with, I embark on two premises: the first premise being that under the present IP regime, accessibility of vaccines is an affair of consequential ordeal for an uncommon number of people. The claim, of course, is subject to proof, which would require a detailed number of variables and indicators; for the sake of argument, let us have it as given. Of course, if the premise fails, the argument, inevitably, recedes.

As to the second premise, maintaining Anne Orford's observation, to assert patent rights over scientific innovations resulting from the collective processes and majorly public funding to command the pace and price of production is the motive that underscores the stated maximalist IP regime, acting as a chilling effect on the public good and access to healthcare and medicine.

Constitutional Argument

The philosophy of constitutional law in India, or elsewhere, assumes that all laws and legislations must be in consonance with the text and spirit of the Constitution. Therefore, the argument runs as follows: the inaccessibility of the healthcare resources (vaccines, in this case), which is the result of the patently wrong regime of intellectual property, shall be tested on the touchstone of the constitutional text, based upon the constitutional right to health. That is to make clear that “The Constitution of India,” Senior Advocate Shyam Divan submitted before the Supreme Court in the Aadhaar case, “is not a Charter of Servitude.”

The idea that underpins the constitutionalisation of intellectual property laws is the act of balancing the two competing interests, that of the right of inventor and the interest of the greater good of the public – in this case, the right to access to medicine.

Therefore, as far as the basic human rights are concerned – such as the right to free speech and access to medicines – the intellectual property rights must pass the litmus test of the constitutional text and its purpose.

Statutory Response: The case of Compulsory Licensing

There are, nevertheless, some connatural exceptions such as compulsory licensing, ingrained in the existing IP regime. Briefly, when a government calls for a compulsory license, it accords permission to a company to manufacture an innovation without seeking laissez-passer from the patent holder.

The government today is morally bound to invoke the process of compulsory licensing to protect the people’s right to health, at a time where vaccines' production are being hampered because of the various IP obligations. Conversely, the constitutional courts too are duty bound as a sentinel to protect the right of people which is guaranteed against the State.

The Central government’s stand, however, on this issue is hypocritical. On one front, they are asking for a global vaccine patent waiver; on the other front, they’re against discussing this issue at home. Whether the issue is taken up by the Court in future is yet to be seen.


Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer 

  • The author is reading law at the School of Law, NMIMS

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