On 4th May 2023, Professor Aisling McMahon published a short article in the Journal of Medical Ethics Blog entitled “EU’s compulsory licensing proposals, patents and crisis preparedness – Some steps in the right direction but more to do for future pandemic preparedness” which is available to read here.
This article examines the recent EU Commission’s proposal to set up an EU wide compulsory license (CL) ‘for crisis management’ and to offer a waiver of data/marketing protections, in certain contexts, when a CL is issued. A CL allows a State to issue a license for a patented technology – without permission from the rightsholder – provided certain conditions are met. Such CLs can be used, for example, to allow a generic manufacturer, where possible, to produce a generic version of a medicine, which can in turn be used to alleviate issues around access to healthcare.
The article argues the recent EU Commission proposals offer some steps in the right direction, however more is needed for pandemic preparedness, as these proposals are limited in various contexts. Limitations identified include that the proposal for an EU wide CL relates only to the use of CL within the EU in crisis contexts. Importantly, these proposals also do not address how the EU can facilitate technology transfer to low-and-middle income countries (LMICs) for crisis and other contexts. The article argues that it is vital the EU Commission must take active steps at an international level to enable technology transfer with LMICs, and to create a better international system which ensures LMICs can produce and access health-technologies during pandemic contexts and more generally. It argues that it is critical that we take steps now, to ensure that we do not repeat the vast inequity that IPRs enabled – and which continues – around COVID-19 health-technologies between high income countries (HICs) and LMICs, in future.
This research was conducted as part of the ERC PatentsInHumans project. Professor McMahon is the Principal Investigator on this project. This five-year ERC funded project considers the bioethical issues posed by patents on technologies related to the human body, including, medicines, medical devices and isolated human genes.