Intellectual property solutions to our COVID-19 woes

The recent weeks have been particularly difficult for Filipino families as the number of COVID-19 cases continued to rise at exponential rates. We have now breached a million COVID-19 cases, with more than 16,000 resulting in death.

​What is ironic is that we are witnessing these staggering numbers at a time when countries like Israel, Singapore and the United Kingdom ­ —all of whom have enjoyed consistent vaccination rollouts — are starting to regain a sense of normalcy.

On the other hand, our government, which initially aimed at inoculating at least 70 million Filipinos by the end of the year, struggles to cope with a global shortage on vaccines. As it stands only 0.2 percent of our population has been fully vaccinated.

​Vaccine czar Carlito Galvez Jr. attributed the lack of vaccine supplies to hoarding by rich nations. President Duterte went further and called out the European Union for holding up supplies meant for countries like the Philippines. The President lamented that the Philippines is not a rich country, and unfortunately, supplies have been going to the highest bidders.

​The bad news is that COVID-19 is unlikely to die a natural death. Research suggests that the virus continues to mutate, producing new strains that are far more contagious than before. A third-generation strain has in fact already been detected in the country. Consequently, even if we are able to vaccinate the entire population, we might still need to secure booster shots that will allow us to repel the new strains. In short, supply issues are there to stay, and so we must figure out other ways to meet our vaccine demands.

Innovation, protection

​Back when the pandemic was in its early stages, the President promised a reward of P50 million for anyone who can invent a COVID-19 vaccine. However, it is very difficult to make vaccines from scratch. Coming up with a formula may take years. As a matter of fact, many of the COVID-19 vaccines in the market today have benefited greatly from past research, undertaken for related coronaviruses. It is for this reason that companies are extremely protective of their vaccines.

​Vaccines are inventions that form part of intellectual property (IP) — creations of the mind that are protected by law. A company that discovers a vaccine may apply for a patent to prevent third parties from, among others, manufacturing its product. Right now, the world’s largest pharmaceutical companies own the patent rights to COVID-19 vaccines. This means that countries who wish to locally manufacture patented vaccines must either secure a license from these patent owners or wait until their patents expire.

​This rigorous system of patent registration and licensing is designed to promote innovation by encouraging inventors to keep on creating products that are useful to society. However, it is not without exceptions. Over the years, international treaties have increasingly tried to respond to the growing need to make medicine more accessible by providing allowances for the nonexclusive use of patents. These allowances, referred to as IP flexibilities, may be used by developing and least developed countries under strict conditions, to respond to the medical needs of their population in times of public health emergencies.

Compulsory licensing

​To illustrate, a country like the Philippines that is suffering from economic and logistical restraints during the pandemic may pursue compulsory licensing, a type of flexibility where the government allows a third party to produce a patented product even without the consent of the patent owner. With a compulsory license, an institution such as the Research Institute for Tropical Medicine may be temporarily allowed to utilize patented formulae to concoct its own COVID-19 vaccine. Notably, the issuance of compulsory licenses is nothing new in our jurisdiction. Even the Supreme Court has recognized the importance of compulsory licensing as a public measure that caters to the increasing health demands of our population.

​Of course, gaining permission to use an existing patent is only the first step. As it stands, the Philippines may not have the capacity to locally manufacture vaccines, even with a compulsory license. Aside from technology, vaccine manufacturing relies heavily on personnel and tools. For instance, it may involve operations, such as “fill and finish,” the delicate process of filling vials with vaccines and packaging them for distribution, which may only be handled by persons who are well-versed in biotechnology. Similarly, other processes may require complex tools, such as high-speed mixers and high-capacity storage facilities. Long-term changes

​To reach our goal of attaining vaccine self-sufficiency, the government must pursue long-term changes aimed at strengthening our vaccine industry. These include enlisting the cooperation of local pharmaceutical companies for outsourced manufacturing processes, negotiating with developed countries for technology transfer agreements, and investing more in research and development.

​It bears noting that IP flexibilities are not limited to the use of compulsory licenses for local manufacturing. For example, the TRIPS Agreement, the most comprehensive multilateral agreement on intellectual property, allows a country with no sufficient logistical capabilities to gain access to finished products by asking another country to manufacture the medicine in its stead. The Intellectual Property Office of the Philippines (IPOPHL) and the Department of Health recently issued draft guidelines on how to avail of so-called special compulsory licenses which would pave the way for this type of manufacturing.

We may also pursue parallel importation and purchase medicines at lower rates. The Cheaper Medicines Act allows us to import medicine from countries with low-cost manufacturers, instead of buying directly from patent owners.

Treading a fine line

​However, while both alternatives are available, they may not be our best options. Right now, virtually every country is looking for more COVID-19 vaccines, making it less likely that anyone would sell its limited supplies. On the other hand, manufacturing our own medicine using compulsory licenses would allow us to secure vaccines without relying too much on the generosity of other countries. Some of our Association of Southeast Asian Nations (Asean) neighbors like Indonesia and Vietnam have expressed optimism that they will be able to manufacture their own COVID-19 vaccines soon. The Philippines should follow suit.

All the above present unique ways by which we can solve the lack of access to COVID-19 vaccines in our country. This is not to say, however, that utilizing IP flexibilities will be easy. The country must tread a fine line between upholding the right to health and respecting pharmaceutical patent rights. To begin with, we must commit to the strict payment of royalties to companies whose time and resources have been devoted to developing their vaccines. The country must also ensure that IP flexibilities are used only to respond to the public health emergency, and not to amass profit. The failure to respect these basic conditions will have devastating effects on foreign relations. It will also send the wrong message to pharmaceutical and other technology companies, who may start viewing the country as a bad venue for investments.

​Nevertheless, the priority of the government should be clear: to provide protection to Filipinos through inoculation. By granting access to elusive vaccines, IP flexibilities could give us a fighting chance against the horrible disease. The government must act fast, or many more Filipinos will suffer hapless, unnecessary deaths.

​A final note: Last April, we observed both National Intellectual Property Month and Word Intellectual Property Day. As such, the IPOPHL, along with other government agencies, held informative events that promoted innovation and the protection of IP rights. However, there is still no better way to celebrate intellectual property than to recognize its potential in solving the world’s most pressing concerns. And right now, no concern is more pressing than the COVID-19 pandemic. —CONTRIBUTED

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The author is the cofounder and managing partner of Cerilles and Fernan Intellectual Property Law [CFIP Law]. He earned a master of laws degree with certificates of specialization in law and technology, and in public law and regulation at the University of California, Berkeley [Asia-Pacific scholar] in 2017. He also holds a master of science degree in human rights, earned in 2019 from the London School of Economics and Political Science (Chevening scholar). He is a senior lecturer at the University of the Philippines College of Law, where he has taught obligations and contracts, and electoral process and public office.)