WIPO SCP 34: KEI statement on patents and health

On Tuesday, 27 September 2022, Knowledge Ecology International (KEI) delivered the following oral statement during discussions on patents and health at the 34th session of the WIPO Standing Committee on the Law of Patents (SCP).

In July 2022, KEI published a report on the US government authorization of the use of patented inventions without consent from patent holders during the COVID 19 pandemic. These authorizations are done under a US statute that limits the remedies for infringement to compensation from the government, and eliminates the possibility of an injunction to block the use of the invention. The United States government can make such an authorization by including a single sentence in a contract. The authorizations typically apply to all US patents, past or future, that relate to the supply of a good or service. There is no requirement to list specific patents, or contact or even negotiate with patent holders.

KEI was able to determine if such authorizations existed in 62 COVID relevant contracts. Among the 62 contracts, 59 included a US authorization to use patents without consent of patent holders. These authorizations, which can be described as compulsory licenses, were used for a diverse set of COVID counter measures, including vaccines, drugs, diagnostic tests, protective equipment and other measures. The beneficiaries of the compulsory licenses included large companies such as Sanofi, Eli Lilly, Merck, Moderna, Novavax, Corning, Philips, or Siemens, as well as many small companies and a few universities.

The extensive authorizations for non voluntary use of patents by the US government is something that governments can do under the flexibility to limit the remedies for infringement found in Article 44 of the TRIPS.

This report is available from the KEI webpage, at keionline.org.