More Said Than Done: Holdup Concerns for Developing Nations during the Coronavirus Outbreak

By Matthew Pham 

I. INTRODUCTION

In the midst of a virus outbreak, all the world scrambles to remedy the situation. The speed and effort at which the world mobilizes itself is heavily driven in part by the promise that the costs related to helping out are going to be paid back.[1] This certainty is solidified in part through the complex network of IP rights that keep track of who contributed what in the international process of crisis control.[2] Arguably, without these intellectual property rights, the speed at which the world could mobilize technological innovations would be slower.[3]

However, IP rights can also prove to hinder the public interest by adding bureaucracy and red tape.[4] On top of stalling from regulations and approvals, pharmaceutical technologies are also stalled at the negotiating table.[5] Certain laws allow the latter problem to be solved through the mechanisms of compulsory licensing and parallel imports.[6] The World Trade Organization provision that provides this avenue essentially permits a drug to be provided and licensed without the patent owner’s permission.[7] Although meant to be an expediting process, the strong interests of IP owners, primarily in the United States, create pressure for other countries to forgo using the provision.[8] As a result, developing countries put more time and effort navigating the IP landscape, slowing down their main objective of providing essential drugs to their domestic markets.[9]

Such may be the case for the latest outbreak of the Corona Virus (or COVID-19). Since last year the virus has propagated from its source in Wuhan outwards into many countries.[10] The virus is causing rising concern in nations, markets and the public at large.[11] Since developing and implementing remedies to a crisis is a complex, multi-step and technological challenge, intellectual property (particularly patent law) finds itself in every aspect of the coronavirus issue.[12] Patents have been and are being filed in every aspect surrounding the coronavirus, including diagnostic tests, vaccines and even strains of the virus itself.[13]

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