Compulsory License for Covid Drugs on the Table, Says Delhi High Court

Generic image of a vaccine
A vial of the Astrazeneca Covid-19 vaccine with a syringe inserted in it (Source: Arne Müseler)

Even as the pandemic situation continues to worsen in India, the Delhi High Court yesterday put out an order that hauled up the government on various issues regarding the response to the pandemic so far, oxygen use, ramping up of testing facilities, shortage of drugs and black market selling of them, bed shortages, wastage of 44 lakh vaccines(!), etc. The 11 page order by the Division Bench, consisting of Justices Vipin Sanghi and Rekha Palli, was given in the case of Rakesh Malhotra v. Govt of National Capital Territory of India and Others, and is available here. It is worth a full read for a quick glimpse on the various issues that the country is facing right now.

Notably, the order also directed the Central Government to ramp up production of medicines for treatment of Covid, noting the various sections of the Patent Act which allow compulsory licence / governmental use of such inventions. Varsha and I have discussed some of these provisions earlier in our post ‘The Public Interest Defence, and the Public Interest Offence – What Is The Way Forward In This Pandemic? and Prashant had addressed them in his post ‘The Need for an IP Policy to Build a Strategic Stockpile for Pandemics. (And see also Anupriya’s three part series starting here, and Pankhuri’s post on Remdesivir shortage here)

I’m reproducing the two relevant paragraphs of the order that discuss this here below:

27. There are a number of other drugs which are being used for treatment Covid-19 patients, such as Tocilizumab, Favipiravir, Ivermectin, Dexamathasone, Methylprednisolone, Dalteparin, Enoxaparin, HCQ and Baricitinib. As per news reports, there are shortages of some, if not all, of the aforesaid drugs. Looking to the emergent situation, we direct the Central Government to immediately reach out to the manufacturers/ patent holders/ licensees so as to forthwith ramp up the production capacities of the above, and all such other medications, as are essential for treatment of Covid
positive patients. We may take note of the fact that the Patents Act provides for Compulsory Licenses under Section 84, and Special Provision for Compulsory Licenses or Notifications by the Central Government, under Section 92. Section 100 provides the power of the Central Government to use inventions for purposes of the Government.

28. Looking to the present day situation, there can be no doubt that a case is made out for exercise of its power by the Central Government/ Controller under the aforesaid provisions of law. At the same time, the interests of the Patent holders/ licensees should be kept in mind, since it on account of their investments, inventions and hard work that such like medicines are made available to the public at large. The best course would be encourage the existing manufacturers to ramp up their production on a war footing. They should also be encouraged to grant voluntary licenses to other entities to
manufacture the requisite drugs. However, if such efforts do not fructify soon enough, the Government/ Controller should not hesitate to invoke their jurisdiction and powers under the aforesaid provisions of the Patents Act, since the lives of thousands of people are being lost each day in the country due to COVID. The lives of the people take priority over everything else. Even if such like powers are exercised, the patent holders/ manufacturers can be adequately compensated by fixation of fair license fee. The Central Government should swing into action in terms of this order in this regard without any delay, and report progress on the next date of hearing.”

Will we see the government finally moving forward on this front? Let’s wait and see.

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