In these times, where news about help are almost as benignant as help itself, some announcements about patents related with Covid-19 have revived the debate about some legal provisions concerning the use of patents in a health emergency.
These legal provisions are usually considered by lawmakers, and Spanish Patents Law has some implicit and explicit references to actions to be performed in the event of a such situations.
Mandatory licences are the most suitable tool designed to face these cases. Patent owners have usually the right to negociate licences about their patents, but there are some cases where local authorities may force the patentees to agree licences with those that have required them.
Art. 91 of Law 24/2015 presents some grounds where a mandatory licence should be agreed. Paragraph d) mentions the presence of “reasons of public interest” and paragraph e) mentions the export of medicines to countries with public health issues. But it is Art. 95 a) which directly deals with health emergencies: “national government may force a patent to the legal framework of mandatory licences in the event the patented invention is crucially important for public health”. Until the publication of this article, Spanish government has not made use of this clause yet. Should they?
On their behalf, the EU has their own legal instruments intended to alleviate the critical situations caused by health emergencies. As announced by the European Comission, the European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (CENELEC), have agreed to immediately free the content of the European standards for certain medical devices and personal protective equipment, so that any company may start the manufacturing of these products without an economical compensation to the patent owners. These patent rights (wrongly called “medical copyright”) gave the owners, as any other patent right, the ability to prevent third parties from reproducing the inventions described therein, which in this case are related to the aforementioned medical standarized products. According to this note, “This action will help both EU and third-country companies willing to manufacture these items to swiftly start production and place products on the internal market more easily while ensuring a high degree of safety”.
However, there are different ways of dealing with this global problem. According to some news, a group of particular researchers have managed to manufacture medical breathers to help Italian hospitals to face the most serious health problem in many years. They did not contact with the patent owner (and did not wait until a legal decision of suspending the rights of the correspondent patents was announced), but developed a 3D-printer version of a breather on their own. Diametrically opposite to these people we may find patent trolls, which, even in these days, do not rest. According to some news, a patent troll called Labrador Diagnosis sued a company making COVID-19 tests for patent infringement. Whether this information is completely accurate or not, this decision seems to be at least very questionable.
It is undoubtedly accepted that a patent provides the inventors with the ability to obtain necessary economical compensation for their investing and effort, even in the event this effort is focused on finding the remedy to a worldwide spread disease. These drugs involve a development process which has the same cost as conventional products, and it would be unrealistic to expect pharma companies to develop it for free. However, licences seem to provide a solution which would intend to satisfy both parties, not leaving the companies without their necessary funds to keep on their research and not leaving the society without the solution to a health emergency.