Three simple things Australia should do to secure access to treatments, vaccines, tests and devices during the coronavirus crisis
April 22, 2020: Deborah Gleeson and David Legge argue in The Conversation that patents and related intellectual property rights can present formidable barriers to procuring medicines, vaccines, diagnostic tests and medical devices.
They can cost lives, particularly during a public health emergency. the Australian government can do three things to tackle these barriers.
Prepare to over-ride patents
First, Australia should prepare to take advantage of some rarely-used but vitally important safeguards in the Commonwealth Patents Act.
They enable patents to be over-ridden when necessary to prevent shortages of vital medical supplies.
Under Sections 132-133, the Federal Court can order that a compulsory license be granted for a patented invention, meaning that a third party (such as a company that produces generic medicines or face masks) can manufacture copies of the invention without the permission of the patent owner.
Reinstate the right to import low-cost medicines
Australia should also reverse its earlier decision to voluntarily waive its right to import cheaper medicines manufactured in another country under a compulsory license, using World Trade Organization rules.
If Australia doesn’t have the manufacturing capacity to produce a particular drug, or to produce enough of it to meet its population’s needs, it should be able to import a low-cost version from another country.
To reverse the waiver, the Australian Government needs to notify the World Trade Organization that it has changed its policy and now considers itself an eligible importing country, at least in the context of an emergency.
Support Costa Rica’s proposal for a global COVID-19 pool on medicines, tests and devices
Finally, the Australian Government should follow The Netherlands in supporting Costa Rica’s proposal for a World Health Organization global pool for rights on data and knowledge that can be of use for the prevention, detection and treatment of COVID-19.
Now put forward by the European Union as a draft resolution for the World Health Assembly, the initiative aims to provide free access to existing knowledge about diagnostic tests, devices, drugs and vaccines, enabling all countries to quickly access or produce affordable products.
Each of three simple practical actions could prevent intellectual property rights from becoming an insurmountable barrier to accessing essential products during the emergency.