A Comprehensive Compulsory License under the WTO TRIPS: Lessons from the Covid-19 Pandemic

Abstract

urpose - The primary purpose of this research is to refine the concept of the Comprehensive Compulsory License System in legal context combining IP laws, international trade laws, and the Common Law of contracts to achieve a harmonious equilibrium. During the COVID-19 pandemic, the global supply chain of vaccines prioritized developed countries to an extreme degree. The global health community requested that the developed countries and pharmaceutical companies producing the vaccines strive for vaccine equity. However, the pharmaceutical companies producing COVID-19 vaccines were reluctant to waive their intellectual property rights. To resolve this stalemate and meet the demand for vaccines by LDCs, we propose a comprehensive compulsory license system. Design/Methodology - Our research analyzes a potential bargain between inventors and governments to support vaccine equity by proposing a new compulsory license system in the post-pandemic era. Findings - The European Union was against the waiver, while the United States changed its initial position to eventually support the waiver. In practice, the stringent consensus rule of the WTO's Ministerial Conference may make it so that waiver requests are not always granted. The existing compulsory license over vaccine patents was not sufficient because vaccine production requires all types of IP, including secret information. Originality/value - This new system is based on the disclosure theory of patents and the concept of patent quid pro quo. The proposed design may work as an essential option to resolve the defects in the global vaccine supply chain