COVID-19 and the Issue of Affordable Access to Innovative Health Technologies: An Analysis of Compulsory Licensing of Patents as a Policy Option

The conflict between patents and public health has been a long-standing concern. The current COVID-19 crisis has further visualized the complexities of the global issue of availability, accessibility, and affordability of essential health technologies. Compulsory licensing is a policy option, provided under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to balance the conflicting interests of patent-holder brand-name pharmaceutical industry and low- and middle-income countries requiring access to the patented pharmaceutical drugs in a legal and sustainable way. The Doha Declaration on TRIPS and Public Health recognized the importance of compulsory licensing in addressing the issue of equitable access to medicines. Despite its established legitimacy, this regulatory tool has been the subject of immense controversy. This article evaluates the conflicting views on compulsory licensing to analyse the root causes of this controversy. It argues that compulsory licensing is not only politically sensitive but also procedurally cumbersome. It also considers empirical evidence on the actual use of compulsory licensing since Doha. Finally, it considers the recent compulsory licensing-related legislative measures adopted by different countries in response to COVID-19. It concludes that the compulsory licensing mechanism needs to be revisited and reformed to make it more responsive and practical. It proposes that the actual use of compulsory licensing safeguard should be backed by civil society mobilization to neutralize the pressures exerted by brand-name pharmaceutical corporations and their hosting countries