The Pandemic and the Vaccine- Licensing Rights in Patent

The first case of novel coronavirus or COVID-19 is estimated to have first occurred at the seafood market of Wuhan, China in December 2019. Little did everyone know that the virus which was first mistaken as the common flu was soon going to change the way of living the entire world.

It all started on December 31st 2019 when China alerted the World Health Organization (WHO) about a new unusual pneumonic disease. By January 7th, 2020 it was confirmed that the respiratory disease is caused by a new virus which was named Cov2019 and was identified as a member of the coronavirus family. On January 30th, 2020 the WHO declared it a global emergency and by March a pandemic forcing the world into a state of lockdown. The virus has since then affected more than 16 million worldwide and has resulted in a monetary loss that could be between 5.8 to 8.8 trillion USD as per a report by the Asian Development Bank.[1]

The Covid 19 virus is highly contagious and has changed the way of living. Masks, social distancing, and small gatherings are becoming the new “normal”. Governments and organizations across the globe have tried everything to flatten the curve, from rigorous testing to complete lockdown but have failed. everyone living their lives in constant fear, the only hope is that of a vaccine that will give immunity against this virus and make it ancient history.

At present research is going over more than 16 different vaccines around the world. India joining the race of developing a vaccine as well there are lots of questions on the process of development and the ownership of vaccines.


The process of developing a vaccine is complex, risky, and costly; this is mostly due to the trial and error nature of the process. The development can be classified into two stages:

  1. Pre-Clinical stage: It lasts usually 2 to 4 years and involves testing of vaccines in laboratories. This is to test the basic safety of the product using chemical assays and cell tests.
  2. Clinical stage: This is also a lengthy process and takes approximately 6 to 10 years on average and is divided into further 3 phases.

Since the experiment can go wrong at any stage, the whole process becomes very consuming and time taking. Therefore, developers try to get a patent as soon as possible to ensure the recovery of basic cost and labor.
The patent can be applied at any time during the process. Since the granting of a patent is also a long process, it is often applied during the pre-clinical stage. This ensures that the patent would be granted by the time product is ready to be introduced in the market


“A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem”[2]

It allows the inventors to restrict everyone else from making, using, or selling their invention. This exclusion creates a monopoly over the invention which helps them in earning profits that would cover the cost of research and development and compensate for the cost of other sources as well.

But this boon soon turns into a bane when the invention in question is a life-saving drug or vaccine. Hence, in order to prevent monopoly over life-saving pharmaceuticals, international IP conventions and organizations have emerged the idea of compulsory licensing. Under compulsory licensing, the government can force the inventors to give license for the manufacturing and sale of their invention to others in exchange for a fee.


The ICESCR (International Covenant on Economic, Social and Cultural Rights) Art 12 states that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

TRIPs (Trade-Related Aspects of Intellectual Property Rights) Agreement, Art 31states: “Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected”

Art 5(A) of the Paris Convention also provides for the scope and conditions on the basis of which compulsory licenses can be granted


The most common question about any developing Covid vaccine is about ownership. It is known as a matter of fact that whosoever will make the vaccine will control the patent. Therefore the licensing will also be controlled by the laws of that nation. The development of vaccines is a global concern as it would not only be a victory for science but a victory of entire mankind. To prevent the inventors from manipulating the world politics or exploiting other nations the WHO and other organizations have come up with a patent pooling initiative

The idea behind a patent pool is that patent holders – companies, governments, researchers, or universities – voluntarily offer, under certain conditions, the intellectual property related to their inventions to the patent pool. Any company that wants to use the intellectual property to produce or develop medicines can seek a license from the pool against the payment of royalties, and may then produce the medicines for use.[3]

In late May 2020, WHO officially launched the COVID-19 Technology Access Pool (C-TAP), a patent pooling initiative first proposed by Costa Rican President Carlos Alvarado. The action is intended to increase public disclosure of gene sequences and data, improve clinical trial result transparency across the globe, and enhance the utilization of clauses in government funding agreements surrounding equitable distribution and affordability. The program at present is officially supported by 39 nations including Brazil, Indonesia, Mexico, Norway, South Africa, the Netherlands, and Zimbabwe.

But with The United States of America, China, India, and most European nations still not being part of C-TAP, the question of the technology pool is still not clear.


Covid-19 has changed the world as we know it. Now the big question is will it also change the way of patenting for the better. With the CEO of Serum Institute of India based in Pune, Maharashtra publicly stating that they will not patent the vaccine and would give information to other manufacturers to increase the production and many scientists joining the initiative of no patenting, there is a hope for better and more humane future.

Author: Charul Tripathi, B.Com LL.B(Hons), UILS, Panjab University, Chandigarh, intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at




[3] The UNITAID Patent Pool Initiative: Bringing Patents Together for the Common Good

Leave a Reply

Your email address will not be published.

1 × 1 =


  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010