The outbreak of the novel coronavirus (COVID-19) and the race by scientists all over the world to find a cure has sparked-off several issues and debates in many areas of law such as Labour/Employment law, Aviation law and Contract law amongst others. Intellectual Property (IP) Law is equally not spared as the race for a cure for COVID-19 brings the field of IP law into play, particularly the Patent law.
In the quest to discover a cure for the COVID-19, scientists are trying their hands at everything possible including the examination and trials of existing drugs covered by subsisting patent protection. In order to check the drugs potency and suitability at combatting COVID-19, scientists have to look at the composition of the drugs with a view to finding a cure within the shortest time possible. Some of these drugs may also have to be imported from other countries so as to meet up with the required demands for the drugs. Aside drugs, personal protective equipment and ventilators are also faced with similar high demand hence requiring their mass production by third parties other than the patent right holders. Obviously, the working, production or importation, by third parties, of an existing drug or equipment still under patent protection, raises the potential problem of an infringement of the Intellectual Property Rights (IPRs) of the right holder in those drugs or equipment. Momentously, governments and patent right holders are carving a niche through legal interventions and the Open COVID Pledge to help scientists find a cure, even though these actions have not been accepted or implemented in some jurisdictions.
A right to Patent in an invention is an exclusive right conferred by statute on a person who has invented a product or process, or made a novel improvement on an existing patented invention, which is industrially applicable and in accordance with the law. Where the patent is granted in respect of a product, the patentee shall have among other rights, the exclusive right to control the making, importing, selling or use of the product; and where it is in respect of a process, the patentee shall have the exclusive right to control the application of the process. In the field of Medicine, patents are granted over inventions (such as drugs and medical equipment) so as to enable the inventor recoup his expenses and time in the research and development of the invention. An interference with the exclusive rights in a patented invention during the duration of the patent is an infringement which is actionable on the instance of the patent right holder.