Access patented vaccines in the time of COVID-19 pandemic

Sammanfattning: This thesis aims to describe and analyze three different solutions on how to make vaccines for COVID-19 available from a patent law perspective under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Under the TRIPS, patent law provides exclusive rights for vaccine inventors to prevent or stop others from commercially exploiting the patented invention for 20 years. During that time, the invention cannot be commercially made, used, distributed, imported, or sold by others without the patent owner's consent. Also, patents give inventors the rights to their discoveries and the means to be remunerated from them, and an incentive to encourage innovation. However, when a patent is licensed, an agreement is made between the patent owner and the person or company that wants to use and benefit from the patent. So a license is a permit to use something. There are various licenses, and it depends on what the parties have agreed. During the pandemic some pharmaceutical companies have made their patent available without any requirement of remuneration, but this has been shown not to be enough as the entire world requires the vaccines at the same time. The second option that might be used to access the vaccines is called compulsory licensing. However, at the time of writing, no Member States (MS) has used this, and it might be because it is difficult to implement through national legislation. Another reason is that some MSs cannot afford to transport and provide vaccines to their citizens, nor do they have the capacity to manufacture vaccines for themselves. Thus, they need to rely on other methods such as compulsory license or the waiver option. The third possibility to access the vaccines could be the recently proposed temporary waiver. The waiver option means that under the TRIPS and Doha Declaration, MSs can claim essential medicines without remuneration. However, the waiver is unsolved and MSs continued discussions on the role of intellectual property amid a pandemic. Between the MSs there are different views. The questions which have been raised around waiver are: does the current TRIPS flexibilities give enough possibilities to access COVID-19 vaccines or is the TRIPSs IP an obstacle to manufacturing and access to vaccines? Or are the problems somewhere else than IP under TRIPS? This thesis concentrates especially on these questions with perspective of voluntary- and compulsory license and the current waiver.