The COVID-19 pandemic and long-term incentives for developing vaccines: Patent law under stress

Continents are facing an apocalyptic pandemic that is terribly dangerous for millions of their inhabitants. This paper seeks to address the role of intellectual property (IP) law in addressing the problem of the COVID-19 pandemic. We suggest that the current international IP law regime and the Trade-Related Aspects of Intellectual Property Rights Agreement are not insurmountable obstacles for access to a successful COVID-19 vaccine. The publicly advocated fundamental reform or even abolition of the present IP law regime under serious information asymmetries might be counterproductive and distortive. Via existing compulsory licensing, advance purchase agreements and the employment of patent-pools, research subsidies, reward mechanisms and reputational sanctions, governments can take the steps needed to effectively overcome any IP-associated barriers to access to crucial medicines/vaccines, particularly during the COVID-19 pandemic. Moreover, the current wave of medical research on COVID-19 suggests the previous vaccine R&D ‘failures’ were driven by the modest demand for such vaccines and were not due to an inadequate IP-incentive stream. The paper also suggests today's EU competition law rules on the horizontal exchange of information could be seen as an impediment to innovation and thus be temporary suspended.