Facilitating Access to Cross-Border Supplies of Patented Pharmaceuticals: The Case of the COVID-19 Pandemic

Journal of International Economic Law (Oxford), Forthcoming Volume 23, Issue 3, Sept. 2020

25 Pages Posted: 25 Jul 2020

See all articles by Frederick M. Abbott

Frederick M. Abbott

Florida State University - College of Law

Jerome H. Reichman

Duke University School of Law

Date Written: July 20, 2020

Abstract


The COVID-19 pandemic has brought into stark relief the gaps in global preparedness to address widespread outbreaks of deadly viral infections. This article proposes legal mechanisms for addressing critical issues facing the international community in terms of providing equitable access to vaccines, treatments, diagnostics and medical equipment. On the supply side, the authors propose the establishment of mandatory patent pools (‘Licensing Facilities’) on a global or regional, or even national basis, depending upon the degree of cooperation that may be achieved. The authors also discuss the importance of creating shared production facilities. On the demand side, the authors propose the establishment of Regional Pharmaceutical Supply Centers for the collective procurement of products, and the need to coordinate the issuance of necessary compulsory licenses for production and/or importation, depending on relevant circumstances. The authors envisage that centralized coordination by Regional Pharmaceutical Supply Centers should assist in overcoming difficulties individual countries may encounter in addressing administrative and technical issues in procuring supplies, as well as creating improved bargaining leverage with potential suppliers. The authors finally address the problem created by the decision of various High-Income Countries (HICs) to ‘opt out’ as eligible importing countries under the WTO TRIPS Agreement Article 31bis amendment that addresses the predominant export of pharmaceutical products under compulsory licenses.

Keywords: COVID-19, patent, pool, licensing, compulsory, regional supply, vaccine, pharmaceutical, TRIPS

JEL Classification: F13, F55, F63, H41, H51, H57, H87, I14,I15, I18, K32, L65,O31,O34, P45

Suggested Citation

Abbott, Frederick M. and Reichman, Jerome H., Facilitating Access to Cross-Border Supplies of Patented Pharmaceuticals: The Case of the COVID-19 Pandemic (July 20, 2020). Journal of International Economic Law (Oxford), Forthcoming Volume 23, Issue 3, Sept. 2020, Available at SSRN: https://ssrn.com/abstract=3656725 or http://dx.doi.org/10.2139/ssrn.3656725

Frederick M. Abbott (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-1572 (Phone)
850-645-4862 or 917-591-3112 (Fax)

Jerome H. Reichman

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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