Kerala High Court seeks Centre’s response to invoke compulsory licensing of Covid vaccines

K.C.Gopakumar Kochi | Updated on July 02, 2021

WTO has allowed countries to issue compulsory licenses during emergencies


A Division Bench of the Kerala High Court on Tuesday asked the Centre to respond to a plea for invoking the compulsory licensing to allow other capable vaccine manufacturers to produce Covid vaccines. The Bench comprising Justice Raja Vijayaraghavan and Justice M.R.Anitha passed the directive when a public interest litigation in this regard came up for hearing.

The petition said that the scarcity of vaccines was mainly due to the inability of manufacturers of the vaccines to ramp up their production. All capable Indian companies could be allowed to produce Covid-19 vaccines by invoking the compulsory licensing system. This had been approved by the World Trade Organisation (WTO).

In fact, the countries were free to issue compulsory licenses during emergencies. Besides, compulsory licensing had been permitted under the Patents Act of 1970. The countries were also free to decide what constitutes an emergency. The patent owner must be suitably compensated. So there was no scope of a backlash from Geneva.

The petition also pointed out that section 92 of the Act empowered the Central government to issue compulsory licenses subject to three conditions; a) there must be a national emergency; b) the requirement must be extremely urgent; c) it must be for public non-commercial use. A deadly virus, killing 4,000-plus Indians a day did qualify for all three conditions. So, India could invoke the section to issue compulsory licensing. India could even override patents on Pfizer and AstraZeneca and other vaccines.

Moreover, the rigours of protection of intellectual property right as per the TRIPS agreement could be relaxed with respect to life-saving medicines, in case of national emergency as decided by the Doha Summit of WTO in 2001, the petitioner added.

Stock availability

Meanwhile, the Bench asked the State government to inform the court whether the stock details of the Covid vaccines could be posted on the Covid_19 Jagratha portal of the state.

The court passed the directive on another public interest petition seeking a directive to disclose the available stock of vaccines with the Centre government came up for hearing

According to the petition, lack of information about the available number of doses had led to chaos and crowding in various vaccination centres. In fact, the vaccine manufacturers' refusal to disclose their production capacity had created a lot of confusion among the people. If the manufactures could not disclose their actual production capacity, the possibility of duplicate vaccines entering the market and black marketeering could not be ruled out. The Centre should state how many vaccines it was importing or going to be imported.

The issue of vaccination schedule without a vaccination supply calendar would cause chaos in vaccination centres. Therefore, the petition also sought a directive to the State government to announce each week the supply calendar of vaccines for all the health centres, vaccination centres and private hospitals.

Published on May 11, 2021

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