Compulsory License as a Last Resort
Photo: Ricardo Matsukawa
The Compulsory License is a legal mechanism, but it should only be used in special situations and when other ways of making patents available are exhausted, said the Federal Judge of the Second Region, Caroline Tauk. She made her presentation during panel 2 of the Congress, which addressed the topic “Patents Compulsory License in the Post-COVID World”, in which the director of Interfarma, Ana Carolina Cagnoni, and the attorney Bernd Janssen also participated, under the moderation of lawyer Philippe Bhering.
The judge pointed out aspects for and against the compulsory license of the Covid vaccine. Favoring it, the fact that this discussion and even the use of this device has taken place in many other countries, such as Chile, Canada, and Germany. Tauk recalled that, in their research, the laboratories received public funds. “That’s why there should be sharing of IP rights, even if not agreed upon.” Against it, the fact that there are other ways of making these patents available to be tested in advance, such as voluntary licensing and technology sharing. Besides, in the Brazilian case, there is an operational difficulty and a lack of technical and productive capacity to exploit the patent.
For Ana Carolina, from Interfarma, it is important to demystify the Compulsory License. “Compulsory licensing is an instrument of exception, as it cannot be the rule, and it is used as a wild card for the entire emergency,” she said, adding that countries that adopted it received backward technology. “If the idea is to issue a compulsory license to develop the park, the question that must be asked is whether this will happen or if it will bring imports from different countries,” she said.
Janssen followed the same line of reasoning in his exposition. When addressing the proposal for a legislative modification on patents by the European Union, he presented an evaluation work on the impacts of this proposal by a Commission, and the conclusion is that this type of intervention should only be used as a last resort. “Compulsory licensing must be addressed by the national laws of the countries,” he concluded.