Addressing the Vaccine Shortage

Why in news?

The massive vaccine shortage in the country has mooted the idea of compulsory licencing.

What is the current situation?

The second wave of the COVID-19 pandemic has claimed large number of lives and the precious lives of the citizens are dependent on the vaccine manufactures.
According to government data till April 26,2021, only 13.5 crore vaccine doses (9% of the Indian population) were administered and it is reported that the country is likely to face a vaccine shortage.
Now the Supreme Court has highlighted the unconstitutionality of the new COVID vaccine policy- allowing vaccine manufacturers to fix prices which can lead to discrimination and vaccine inequity.
It has directed the Centre to consider invoke compulsory licencing of drugs and vaccines under the Patents Act, 1970.

What is Compulsory Licencing?

Compulsory Licensing (CL) allows governments to license third parties (other than the patent holders) to produce and market a patented product or process without the consent of patent owners.
It is regulated under the Indian Patent Act, 1970.
The application for compulsory license can be made any time after 3 years from date of sealing of a patent.
The following conditions should be fulfilled by the applicant:
- Reasonable requirements of public have not been satisfied;
- Patented invention is not available to public at a reasonably affordable price;
- Patented inventions are not carried out in India.
According to Section 92 of the Act, CL can also be issued suo motu by the Controller of Patents.
But this should be based on the notification issued by the centre if there is a case of either a national emergency or extreme urgency or for public non-commercial use.

What can the centre do now?

The centre can address the present drug and vaccine shortage through its immense powers it has under the patents law.
If it declares national emergency or extreme urgency, then willing company to manufacture the COVID vaccine can make an application to the Controller General of Patents.
This secures a compulsory licence and the licence-holder can then go ahead and use the patented technology to manufacture the vaccine or the drugs.
Large number of players in the market will lower the financial burden on the government and ensures dynamism in the COVID drugs and vaccines market.
Also, this will ensure that the drug or vaccine gets cheaper and supplied adequately to meet the growing demand.
However there is a concern of potential litigation due to which other manufacturers are unwilling to seek compulsory licences.

How can this issue be addressed?

Such concerns has to be alleviated by the Centre due to the gravity of the current situation.
The patent holders can be adequately compensated by fixing a reasonable licence fee.
The right to life of the people should be of prime importance over any commercial interests of the companies.
Even the Russian and Hungarian governments have issued compulsory licences for remdesivir and made it available for cheaper prices to the public.

What can we infer from this?

COVID-19 has disproportionately high impacts on the poorest and most marginalised and leaving patients to the fluctuations of the market where Big Pharma determines the prices is arbitrary.
To reduce the numbers of cases and deaths, it is necessary that even the poorest of the poor have access to treatment (including access to oxygenated beds, ICU & ventilators) and free vaccines.
Even the Supreme Court has said that Centre should procure all vaccines and negotiate the price with the vaccine manufacturers.
Therefore, it is incumbent on the Central Government to ensure that the vaccines are available to all free of cost following the universal immunisation policy.
This can be achieved by the compulsory licensing clause of Indian Patent law.

Source: The Indian Express