Foreign Patents could prevent UK citizens accessing treatment for Covid-19

In a time of crisis, access to appropriate pharmaceuticals is of paramount importance. At present there are 6 UK centres attempting to find an antiviral treatment for the Covid-19 virus. There are many more seeking other drug interventions to stop the rampage of the virus.

Access to patented pharmaceutical subject matter is denied by the ownership of a patent. The Government has always had the right to bypass the system by commandeering UK pharmaceutical patents but it possesses no such right with respect to foreign patents. So if the cure to Covid-19 is found, trialled, licenced and manufactured outside the UK, the Government must be able to ensure its availability to the UK population. If the invention is discovered outside the UK foreign patents rights prevent the UK Government accessing the drug.

At the international level the UK Government might have had the right to obtain an automatic right to licence the drug for distribution within the UK, “a licence of right”, to the patent over the export of pharmaceuticals into the UK under article 31bis of The Agreement on Trade-Related Aspects of Intellectual Property Rights, TRIPS. The UK, alongside other member states of the EU, has opted out of the benefit of Article 31bis of TRIPS, a provision which permitted its right to import the active ingredient of a patented pharmaceutical, without the consent of a foreign patent owner provided, of course, it remunerated the patentee.

Opting back in to Art. 31 bis of TRIPs might take too much time given the urgency that the crisis demands. Political pressure increased recently. A letter requesting that the UK and other WHO countries which opted out to do just that was sent by interested parties a week ago.

So absent membership of the Art 31. group, UK companies might wish to look to section 48A of The Patents Act 1977 which empowers the Court to grant UK licences of right to use a patent filed by patentees of WTO member states.  If the UK remains unable to export the active ingredient from outside the UK into the UK no doubt from the 2 main pharmaceutical manufacturing countries, India and China, then it might have to look to manufacturing such products itself here in the UK.

One fly in ointment is Donald Trump’s threat to deny the WHO further funding which may impact upon whether s.48A would extend to inventions made in the US if it no long remains a member to Art. 31. But assuming the US is not the only player in town in relation to Covid-19 drugs, s.48A may remain the refuge for Covid-19 pharmaceuticals within the UK.