Compulsory Licensing of Essential Pharmaceutical Products During A Pandemic: A Critical Legal Study

Abstract

As a response to the critical issues arising because of COVID-19, several countries have taken extreme measures to advocate that the World Trade Organization ought to ensure that its members are being provided with extra measures for the suspension or any such requirement for the application of Intellectual Property during the times of COVID. The rationale behind this argument was that it could ensure the continuation of the generation and supply of COVID-19 medications as well as public healthcare innovations during the ongoing pandemic. They argued that this should continue untill the insusceptibility has been accomplished. In pursuit of this argument, the states of South Africa and India in 2020 (October) presented a request to the World Trade Organization for a transitory waiver in the application of intellectual property requirements dealing with COVID related diagnostics, medications or vaccines. Despite this proposition being supported by over 100 nations, the compulsory licensing was not granted. The WTO argued that every other measure available for IP protection of medical products can be used instead of the waiver. This research seeks to understand the necessity of compulsory licensing for the benefit of developing countries and what are the valid grounds on which compulsory licensing can be granted or denied.