Patents, Pharma, and the Pandemic
37 Pages Posted: 29 Jun 2020 Last revised: 4 Sep 2020
Date Written: September 4, 2020
Highly-income countries have generally supported strong patent rights and opposed utilizing compulsory licensing to obtain patented drugs without the patent holder’s permission. But the COVID-19-related drug shortages, coupled with the lack of a vaccine, have caused various governments to reassess their views. Aided with substantial taxpayer money, pharmaceutical companies are rapidly developing new vaccines and treatments. There is no guarantee, however, that any newly-developed drug will be plentiful or affordable. Several countries have consequently passed new legislation bolstering their governments’ ability to provide patented drugs to their citizens for the duration of the pandemic and have signaled a willingness to issue compulsory licenses if needed. But the United States remains staunchly opposed—driven by the belief that any crack in strong patent rights will unduly harm innovation. This Article provides an overview of existing U.S. compulsory licensing law and examines how the U.S. government’s attitude towards the compulsory licensing of drugs has shifted over time. It discusses how Canada, Israel, and various European Union member states have adapted their patent laws and have taken a collaborative approach to safeguarding public health, while the Trump administration has pursued a path of “vaccine nationalism.” Finally, the Article proposes federal and state solutions to address this and future pandemics, including advocating for states to take advantage of sovereign immunity to obtain needed drugs.
Keywords: COVID-19, pandemic, patents, pharmaceuticals, drugs, compulsory licensing
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