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About a Universal Right of Access to Health, Intellectual Property, and Other Legal Intricacies

In its recent extraordinary Assembly in November 2021, the WHO agreed to "launch a process to develop a historic global agreement on prevention, preparedness and response to pandemics", which leads us to raise the importance of having a global treaty on this issue, not only of course, in our condition as human beings, but from the point of view of our condition as lawyers dedicated to intellectual property.

And the fact is that the complexity of the issue is not insignificant, since the relationship between the right to health and the aforementioned intellectual property is close, as evidenced by, for example, the Doha Declaration, according to which TRIPS does not They prevent the member countries of the WTO from taking measures regarding public health, especially in what has to do with access to medicines.

Taking into account the above, how could a global treaty on pandemics affect Intellectual Property law?

It is necessary to remember that the necessary scientific knowledge that resulted in the vaccines that are available today to prevent severe symptoms and death from Covid 19 arose mainly from financing from different governments, however, since it was not conditioned to the sharing of the result of the same. , led to what we call inequity in access to vaccines, and what leads to the need for a global treaty on health.

What has been said so far leads to the fact that the treaty would have to contain not only mechanisms already provided for within Intellectual Property, such as compulsory licenses regarding patents, but also many others that do not exist today; Well, as Olga Gurgula and John Hull [1] affirm , the obstacle to designate in some way the mess that we face, is not only with respect to the aforementioned patents, but also to industrial secrets, due to the fact that great part of the technology around a vaccine is not protected by the former but by the latter.

These secrets cover all kinds of information from manufacturing, investigation of the behavior of organisms and procedures to reach a result, then the treaty that the WHO is talking about necessarily has to go through the mechanisms for the sharing of these secrets by the laboratories , which would necessarily result in a modification of the intellectual property in this aspect, having to foresee:

  1. Voluntary incentives for disclosure and sharing of secrets.
  2. Disclosure mechanisms.
  3. Recipients of the disclosure, since it should not necessarily result in general public access to the secrets.

The question is: are we ready for a reinvention of the vision of Intellectual Property, and remember what its goals are?

Let's hope so.

[1] GURGULA Olga, HULL John “Compulsory Licensing of Trade Secrets: ensuring Access to COVID 19 Vaccines via involuntary technology transfer”. Oxford Press University Press – Journal of Intellectual Property Law & Practice, 2021, Vol 00.

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Natalia Vera Matiz's picture

Lawyer UNIVERSITY EXTERNADO DE COLOMBIA (2006).

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