Saving Ukrainian Lives during the Russian War: Ukraine Must Waive IP Rights under Article 73 TRIPS to Provide Access to Essential Medicines

GRUR International, Volume 71, Issue 8, August 2022, pages 719–730

24 Pages Posted: 19 Apr 2022 Last revised: 5 Jul 2023

See all articles by Olga Gurgula

Olga Gurgula

Brunel University London - Brunel Law School

Date Written: April 12, 2022

Abstract

In light of the severity of the health crisis in Ukraine due to the Russian aggression, the Ukrainian government must urgently implement expeditious solutions to increase the supply of essential medicines and medical products. One such measure is to exploit all existing domestic manufacturing capacities that are still intact and seek any possibility to import essential medicines from abroad. For this, all the barriers would need to be eliminated, including those in the form of intellectual property (‘IP’) rights that might protect many essential medicines that are currently needed in Ukraine. This article argues that the existing mechanism of compulsory licensing under TRIPS and Ukrainian IP law is not effective to resolve the problem of access to medicines during such a critical situation as the ongoing war. It, therefore, suggests that Ukraine must immediately waive all IP rights related to essential medicines and medical products to enable the domestic production and seek any potential import of generics and biosimilars of essential medicines. Such a waiver would be justified based on ‘security exceptions’ of Article 73 (b)(iii) TRIPS. This provision allows a WTO member to utilise measures to protect its essential security interests taken in time of war. It is hoped that this article will provide guidance to the Ukrainian government on the most effective way to deal with the current health crisis in Ukraine and, thus, would help to save lives of millions of people in Ukraine who suffer from Russia’s unjustified, horrific aggression.

Note:
Funding Information: None to declare.

Declaration of Interests: None to declare.

Keywords: russian war against Ukraine, IP rights, access to medicines, compulsory licensing, IP waiver, patents, Article 73 TRIPS, security exceptions

Suggested Citation

Gurgula, Olga, Saving Ukrainian Lives during the Russian War: Ukraine Must Waive IP Rights under Article 73 TRIPS to Provide Access to Essential Medicines (April 12, 2022). GRUR International, Volume 71, Issue 8, August 2022, pages 719–730, Available at SSRN: https://ssrn.com/abstract=4082247 or http://dx.doi.org/10.2139/ssrn.4082247

Olga Gurgula (Contact Author)

Brunel University London - Brunel Law School ( email )

Kingston Lane
Elliott Jaques Building
Uxbridge, Middlesex UB8 3PH
United Kingdom

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