Name of the Student: Vaishnavi Krupakaran

Registration Number: 17BBLB054

Program: B.B.A.LL.B (Hons)

Semester: Semester IX

Course Name: IPR & Cyber law

Course Code:5BBLB923

Component: Research Paper

Date of Submission:
25th October 2021

Submitted to: Prof. Dr. Valarmathi. R

CONTENT
1
Topic Page
No.
Abstract 3
Introduction 3
Research Problem 4
Objective 4
Research Question 4
Hypothesis 4
Research Methodology 4
Method Of Citation 5
Literature Review 5
Analyse the impediments to open access to science and technology disturbing the 6-8

public health

Forecasting the unfamiliar activities in the IP domain to determine the Future of intellectual 9
Property rights

Future Consequences of changes in the IP field (suggestions) 9-10

Analysis 10

Conclusion 10
11-
12
BIBLIOGRAPHY

2
ABSTRACT
Covid- 19 had debilitated the strongest economies of the world , it has jeopardized the existence
of humanity . The pandemic was described as a Public Health Emergency by the World Health
organization .The activities of all the countries in the world came to sudden still . Every nation
came up with its own way of curing and handling the situation to bring the situation to normalcy
but all the efforts were in vain . This was the worst situation ever faced in the last few decades
due to increase in death rates and decline in economy .This motivated the world health leaders to
think about new policies to formulate and new decisions to be taken . Along with lot of Research
and development to find out the right therapies or drug . The research involved a lot of
conundrum around R&D to find the right combination existing drugs or different combination
for new drugs .This in turn led a drastic change in the existing Intellectual Property Rights Act .
The free access to Intellectual Property Rights increased the confusions in people’s mind and it
played a vital reason for hindering the mitigating effect of the Covid -19 Pandemic . There needs
to be a global initiative to bridge the gap between open access to Research and development and
development of Suitable And sustainable technology . It is imperative to strike the right balance
between both the domains and harmoniously construct the various fields to effectively eradicate
the global pandemic from the world Therefore the Covid -19 pandemic has acted as a catalyzer
in transforming the IP domain . A collective approach of all the nation’s and its ‘s people’s co-
operation, effort ,belief and contribution of the world population is very important to triumph
over any health , financial , economical obstacle .
Keywords: Public Health ,Covid-19 ,Intellectual property right, research and development ,
open access

INTRODUCTION

The Indian government at both the level Centre and State provided the best possible support to
the protect people of India , India also helped other countries by providing Anti –Malaria Drug ,
which was subject of appreciation to fight the pandemic and it also gained vast popularity to
fight against the deadly disease .But the situation also left the nation with questions about the
availability and sufficiency of medicines and resources , the best combination of the available
drug to cure the disease ,how to make the drug available for free or at an affordable price . After
many such brainstorming questions we discovered that the we cannot alter the combination of
the already available resources , hence to mitigate or eliminate the wrath of the disease new
medicines have to be invented , this is where the protection of creation of the medicine steps in
by Intellectual Property Rights .It is difficult to reach to a globally harmonized way of dealing
with the pandemic , therefore there has to be some changes in the Intellectual Property Acts ,
which could act as a barrier to protect the public health without such amendments .
The question of accesses to current medicines and drugs is not an issues but the availability of
access of approved drugs to cure the problem is the problem . Therefore the policy should be

3
amended or framed in such a manner as to not make invention in the field of science more open
and create more scope of innovation, the Intellectual Property act and Other ancillary rules
should not curb the zeal of the innovator . Hence at the end of the National emergency the
position of IPR should be reversed in order to preserve the rights and benefits of the researcher.
RESEARCH PROBLEM :
Covid -19 has jeopardized the largest economies of the world which made the world leaders
engage in the Research and Development of the medicines as well as formulating rules and
polies which left the domain of R&D in a conundrum , to find a drugs , medicines , therapies to
cure the virus to bring the Pandemic to an end . This is the main reason ,IPR has become
excessively important during and Post pandemic in the field of medicine and R&D .
OBJECTIVE :
✔ To understand the importance of IPR in research and development
✔ To understand the concept of IPR in Public health and invention
✔ To analyze the barriers to open science and innovation which is disrupting public health
✔ To analyze the implications of the change in IP domain due to the Pandemic .
RESEARCH QUESTION :
1. Whether the free access to IPR is discriminatory or crucial in mitigating the COVID-
19 Pandemic?
2. Will COVID-19 Pandemic change the IP Domain for the better or not?
HYPOTHESIS :
Due to the barriers in open science of innovation of technology and research should there be a
change in the intellectual Property Domain for better .

RESEARCH METHODOLOGY :
The research methodology undertaken in this study is a doctrine in nature. The material referred
is a secondary source. The researcher has resorted to materials from both offline and online
sources, such as books, the internet, journals, etc.

METHOD OF CITATION:
The method of citation followed in the research paper is the Harvard bluebook method of
citation, 21st edition.

LITERATURE REVIEW:
 Public Health ,Innovation and Intellectual property report :Ellen ‘t Hoen
This Report of the commission on intellectual ,property rights ,innovation and Public
Health – this paper focus on the international trade and competition bilateral agreements,

4
 TRIPS, it discusses in detail about access of information . World Health Organization’s
global plan and regulatory framework .
 Human health and IP systems Innovation, access and public welfare :Wipo
This paper discuss about the current public health and IP issues , it has clearly classified
and mapped the current issues and policy landscape . It also address the current issues
and how can the innovation structure be managed in the Public Health Sector.
 Intellectual Property and Public Health :Two Sides of the same Coin – by Yahong
Li
This paper discusses the issues of the public at large , the high price for patenting drugs
which are the prime reason for drug access in poor and developing nations Public health
and Human rights abandon patent rights and impose legal duties .this article further
investigates about the monopoly practices of manufacturing of pharmaceuticals .It has
further discussed about compulsory licensing or a practical solutions to address the issue .
The relationship between IP and R&D and commercial activities .
 COVID-19, IP and access: Will the current system of medical innovation
and access to medicines meet the global expectations ? by O Gurugula
This paper throws light on the unseen flaws of the regulation which came into light due
to the pandemic and the need to change and amend the regulations . The short term
mechanism and long term goals to meet the innovation model . The current regulatory
landscape in the sphere of the public health domain should not only solve the current
issues but be formulated in such way as to make us prepared for the future .
 The Case for Waiving Intellectual Property Protection for Covid-19 Vaccines- by
Prabash Rajanm
This article talks about how the vaccine is a ray of hope for millions of people but the
major obstacle to production and distribution of the vaccine is Intellectual Property
Rights .India and South Africa jointly proposed to the WTO to waive few provisions of
TRIPS agreement due to the pandemic situation . The extent of flexibility provided by
TRIPS on the joint proposition is insufficient to deal with a situation like the pandemic
especially in developing and underdeveloped countries .
 Why intellectual Property rights Matter for Covid –by Philip Stevens and Mark
Schultz
This paper talks about the truth and trust of inventions with IP access , but this important
access itself acted as the greatest pandemic for as it impacted the creation , development
of treatment and drugs making it unaffordable .It also focuses on IP access in eradicating
competition and there was no other choice but to make the market highly competitive to
unfold the vaccines . It elucidates on how the world pandemic can be better handled by
organizations such as WTO to support the current efforts and innovate the best drug to
cure the deadly disease .

5
Analyze the impediments to open access to science and technology disturbing the public
health
The main goal of IPR to encourage the innovations in technology, IPR acts as a shield for and
invention from production top commercialization .The pandemic has totally disturbed the IP
guidelines. The virus has caused great trouble and suffering to the world’s population, all the
efforts of the governments are in vain .the virus has many side effects which has disrupted the
entire world’s economies, it has brought all the business of the world to a standstill, huge loss of
unemployment etc which has effected the interdependent economies of the world .
The worldwide IP framework needs to changed and relax the laws which imposes restriction on
the patented technology for deployment of medicines, vaccines and other health safeties of
people.
In an open conference the organizations like WTO , WHO , WIPO declared that all the WTO
members will be supported in the invoke the ‘Security exception ‘ under Article 73 of the
agreement of trade related to TRIPS to handle the current situation . here the security of people’s
health played a greater role than IP regulations .
The steps will be completely governed from manufacturing of the drug to procuring and
facilitating the drug usage. Especially for developing countries the restriction of Article 73 (b) of
the TRIPS agreement should be liberalized as it is the matter of life of various people , and IP
acts as a major hindrance while purchasing medical technology or manufacturing of the drug to
save the lives of many people .1
Hence it is vital for us to first identify the barriers to access. Various barriers exist such as
manufacturing of equipment’s procurement of equipment’s, proper health infrastructure import
and export, internal transportation and also shortage of Healthcare workers. All these access
should definitely be bound by laws and Policies safeguards but due to the current situation there
needs to be a relaxation during Covid -19.
Where is countries have liberalized the provisions of intellectual property right like Israel
Germany France most of these countries have also enacted new laws to liberalize the intellectual
property rights and wave of the compulsory license for efficient and effective use. The rule in
India states that during National Emergency any provisions of The Patent Act or the IPR
Protection Act can be revoked and any restriction can be removed. As This is not the time to
think about commercial success rather it is the time to think about the health safety of the entire
world. The provisions in the Indian Patent Act are written below -
1) Compulsory licensing- It is a contract between the patentee and the licensee(buyer) which is
governed by the government to provide the rights to the patentee against the third party in case
1
Joe C Mathew, Coronavirus: Will intellectual property be a hurdle in India's fight against COVID-
19?, BUSINESS TODAY (October 25 ,2021, 10:40 A.M.),
https://www.businesstoday.in/latest/trends/coronavirus-will-intellectual-property-be-a-hurdle-in-
indias-fight-against-covid-19/story/400200.

6
of manufacturing, procuring, or sale. This is the main reason why the patentee 2 cannot
excessively use it for commercial success and the commercial success is being hampered along
with other factors like loss of invention uniqueness which is the major obstacle for recovering
money pumped into research and development activity and it also reduces the further scope of
innovation.
Many developed and underdeveloped countries are the UK USA Australia France and Malaysia
have provided for compulsory licensee in their patent laws but compulsory license during
National Emergency - the central government has all the rights inactivate or relax the patent
laws. The central government has no liability for elaborating ,the detailed procedures with
respect to issue of license in such case. During the time of pandemic was when most of the
people needed to be supplied vaccines at the lowest possible rate, keeping in mind the
affordability of everyone. Cases3 the patents act also gives permission to the government to allow
the third party to use the patent for government use only after seeking the government's
permission.
In such cases the government can take royalty to the patentee if it is necessary for the good of the
general public.4
3)Generate manufacture without license in this case usually the manufacturer produces those
products which do not need any license. This involves a litigation to solve the problem for
infringement of the patent is rights. As litigation involves lot of efforts cost and time. Patentee
will not be able to reap any commercial success or profit from the invention. This is the main
reason why this method is a major reason for the patentee to be patented to be burden and his
rights are waived off. He should be able to negotiate better deals with the government. The
government provide great deals to the patentee in such cases entire world can take the advantage
of the invention at a very affordable price.
This will motivate patentees voluntarily approach the government. According to WIPO in case of
patent pools or when patents belong to a more owners which is often seen to be very complex
which involves a lot of Technical Solutions. This greatly helps the patentee to reap good fruits
from his invention and bonafidely help people to take benefit of the patented product-
1. A classic example of this is the Costa Rican officials were very concerned about the
affordability of the drug in the entire world because of which the World Health Organization
had to voluntarily share the patent right and data researched to be available for the Covid -19
vaccine.5
2. There was an open pay pledge to make intellectual property rights of the investors and
innovators so that great affection of people can take benefit of which companies like Intel
Mozilla ,creative commons have taken the pledge. This pledge has also been taken by various
2
The Patents Act, 1970 of Section 92
3
The Patents Act, 1970 of Section 92(3)
4
The Patents Act, 1970 of Section 100
5
Secretariat WIPO, Patent Pools And Antitrust – A Comparative Analysis, WORLD INTELLECTUAL
PROPERTY ORGANISATION (October 25 ,2021, 10:40 A.M.)
https://www.wipo.int/export/sites/www/ip-
competition/en/studies/patent_pools_report.pdf.

7
 universities like Harvard MIT Stanford University of Utah, Montreal neurological Institute
Hospital etc.
3. 3) Where as countries like Australia Brazil Canada Germany India urged to support the
public health by publishing materials and articles related to covid-19. Allowed for complete
mining of data using artificial intelligence. 6
All these Examples clearly elucidate how patent and IP laws should be reframed to cater to the
current situation.
It is imperative to bring changes into patent laws are they still a design to hold the rights of the
pharmaceutical company even in case of dire requirement. Classic example of such a situation is
the company of roof which is a sweet Swiss company. This company did not agreed to provide
the recipe for testing liquid in spite of the government or social and requesting it only after the
criticism of the Dutch government the company was ready to share the recipe even when the
pandemic was at its peak. To avoid such cases the best solution is for the companies to work in
Alliance with government and not independently.
Forecasting the unfamiliar activities in the IP domain to determine the Future of
intellectual Property rights
After the problem of global cooperation and sharing of medicine recipes and Technology. After a
few weeks of the pandemic being struck the covid-19 sticks kits were seen as huge
achievements.
In spite of IB restrictions rigidity the governments are frantically walking to frame policies
which will benefit the manufacturer and the consumer. This is giving more flexibility to the open
system, big companies are now working with smaller companies to increase in the process of
vaccine production. An example for the situation would be Glaxo smith working with Sanofi.
Private companies and Universities have come together like the Pune based serum Institute of
India is working with University org of Oxford for developing the vaccine chadox1.7
All the government just trying very hard guarantee a peaceful economy and patents should not
become a reason for fight against the covid-19. Looking and at the intensity of seriousness of the
pandemic many patent right holders have taken an oath not to exclude others from use of
invention for example Lopinavir inventor announced it will not claim any Intellectual Property
Rights on the drug. Giled did not enforce any rights on Remdesivir. In India the serum Institute
of India has clearly announced that it will not claim any patent right for any research of
manufacture related to coronavirus
Future Consequences of changes in the IP field (suggestions)
In spite of the huge amount of harm and loss caused to the inventors and the investors due to the
pandemic there are a few alternative options which can protect the legal and the financial rights
for the investor and the inventor some of the ways of protecting are given as follows -
6
The Open COVID Pledge (October 25 ,2021, 10:40 A.M.) https://opencovidpledge.org/
7
Heena Lamba, Will the COVID-19 Pandemic Change the IP Domain for the Better?, SCIENCE THE
WIRE (October 25 ,2021, 10:40 A.M.) https://science.thewire.in/health/covid-19-pandemic-research-

8
1)Voluntary licensing negotiating price with government voluntary licensing is a step where the
patent is negotiated by the government for a lower price while keeping the owner's rights on the
product intact by this a large number of people can referred it
at a reasonable price.
2) Combination of IP and non IP incentives- as the vaccine business is not a very profitable
business most of the big corporations are not ready to invest in vaccine. Specially after the
relaxation of the IP laws. They can be a method of combination pairing of IP and non IP
incentives together which can be offered where in the IP products are granted IP but for a
neglected device or another solution is fast approval of IP wherein the rules governed for
exchange of development of product is for a neglected disease.
3) Public private partnership-
Such kind of mutual partnership greatly helps in funding manufacturing, taking care of the legal
issues. The pandemic brought most of the organizations closer at various levels of research and
development process.
4) Government initiative - the government can take appropriate initiative by funding arranging
for funds for research and development and innovations of Technology and Science it can also
arrange for joint ownership of innovation so that there is higher chance of success
Analysis
The detailed study of IPR and public health can be concluded and analyzed by saying that all the
sections and starters of people should be benefited by any invention.
During Global pandemic like the covid-19 where the affordability rates of the entire population
should be taken into consideration and also there was no means to cure the Deadly disease. The
steps have to be erratically in nation which have improper economic policy and technological
leave backward.
Imperative for the economies to universally come together to provide Healthcare safety for
everyone on the earth. The main issue at this stage is because there are no permanent medicines
vaccines that or therapies which can cure the virus, this has greatly question the framework of IP
as a barrier to access. Arouse the governments of the Global economies to sit with medical
experts and increased innovation that leads to formulation of a permanent cure a vaccine and not
a temporary vaccine for a year or 6 months. Along with new invention there needs to be a lot of
emphasis on policy formation as well. The policies regulated should be in such a way that it
needs to guide the people in the right path to create more inventions and not demotivate them
from investing and inventing.
Many big companies like Mozilla Intel Cipla and non profit organizations like Medtronic have
come together to be a part of the pledge undertaken for free
Access to Pharmaceutical inventions and technologies. This includes Scholars, researchers and
academician to publish all their work related to the pandemic.

9
WIPO has taken various measures to help in the innovation.
1)Enable the policy tracker which gives information about the measures undertaken by the IPS
officers, additionally it will also provide policy measures with respect to any exceptions
limitations or compulsory licenses.
2)To remove the impediments of languages there was a database created known as
PATENTSCOPE which has more than 80 million Technology disclosures so that there is an
automatic translation system, this useful technological intelligence is greatly used by many
scientific and technological Institutions for their commercial success on a daily basis.
3) access to research and development innovation this is an online access where even under
developed in developing countries can get access to all the technical and scientific journals free
of cost.
4) 900 technology and innovation centers have been set up all over the world to provide patent
protection and scientific data protection. Also encourages Publications and provide great
facilities for researchers for developing transitioning of the economies during the Covid-19.

Conclusion
To overcome this pandemic make it is very important fit for the economies to have a universal
approach. To eradicate the space between open access if R&D and development of Technology.
The developed economies should reach out for the help of developing and underdeveloped
Nations by providing them free and sufficient access for treatment and drug. Government at
National and international level should review the policy of trips agreement because rights of the
investor an inventor should be protected and not destroyed with creation of new technology.
A proper balance should be struck to eliminate covid - 19 from the world.
Hence it is very important for everyone in the world to collectively co-operate to fight against
covid-19.

10
BIBLIOGRAPHY
Books:

● DR. BL WADEHRA, LAW RELATING TO INTELLECTUAL PROPERTY, (Universal

LexisNexis 2021)
● V.K.AHUJA, LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS,
(LexisNexis 2021)

Journals:

Ellen ‘t Hoen, Public Health ,Innovation and Intellectual property report,

https://www.who.int/intellectualproperty/documents/thereport/ENPublicHealthReport.pdf?ua=1

Wipo ,Human health and IP systems Innovation, access and public welfare ,
https://www.wipo.int/export/sites/www/policy/en/global_health/pdf/public_health_ip.pdf
Yahong Li, Intellectual Property and Public Health :Two Sides of the same Coin,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1938267

O Gurugula, COVID-19, IP and Access: Will the Current System of Medical Innovation and

Access to Medicines Meet Global Expectations?,https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=3771935

Articles :

Prabash Rajanm, The Case for Waiving Intellectual Property Protection for Covid-19 Vaccines,
https://www.orfonline.org/research/the-case-for-waiving-intellectual-property-protection-for-
covid-19-vaccines/

by  Philip Stevens and Mark Schultz ,Why intellectual Property rights Matter for Covid,
https://geneva-network.com/research/why-intellectual-property-rights-matter-for-covid-19/
Heena Lamba, Will the COVID-19 Pandemic Change the IP Domain for the Better?, SCIENCE
THE
WIRE, https://science.thewire.in/health/covid-19-pandemic-research-
Secretariat WIPO, Patent Pools And Antitrust – A Comparative Analysis, WORLD
INTELLECTUAL
PROPERTY ORGANISATION https://www.wipo.int/export/sites/www/ip-
competition/en/studies/patent_pools_report.pdf.

11
The Open COVID Pledge https://opencovidpledge.org/
Joe C Mathew, Coronavirus: Will intellectual property be a hurdle in India's fight against
COVID-
19?, BUSINESS TODAY (October 25 ,2021, 10:40 A.M.),
https://www.businesstoday.in/latest/trends/coronavirus-will-intellectual-property-be-a-hurdle-in-
indias-fight-against-covid-19/story/400200.

12