The Winning Formula

Provisions in the Act can be used to provide for compulsory licensing. This will allow the centre, without the permission of the patentee, to use a vaccine for a national emergency at affordable prices

- Saju Jakob

IN the midst of the hue and cry about the shortage of Covid vaccines and shutting down of a few vaccination centres, the need of the hour is to multiply the production of vaccines at multiple levels. With huge demands from states, stakeholders and political parties either to invoke the provision of compulsory licence in accordance with the Indian Patent Act 1970 or to share the formula of Covaxin, an indigenous vaccine jointly produced by ICMR and Bharat Biotech, an announcement by NITI Aayog member Dr VK Paul about the intention to invite more companies to produce it came as a ray of hope.

It is a matter of great relief that two central PSUs are allowed to avail technology transfer from Bharat Biotech, apart from Haffkine Bio-Pharmaceutical Corporation. This relief was made at a time when the government made its stand clear to the Supreme Court in a suo motu case that it had no intention to exercise its power under the Patent Act over Covid vaccines and medicines at this stage, claiming it to be “counterproductive”.

Though the provisions of the Patent Act could be invoked to increase the flow of Covid-related drugs, they cannot be invoked with regard to its vaccine as it has not been patented under Indian law. Undoubtedly, the government can use the Indian Patent Act 1970 if there is at least an application for a patent pending with authorities. However, the government can still draw a parallel from Section 92 of the Act and accordingly, make a new law by ordinance considering the grave situation.