Pandemic Times… Licensing Times for the Exploitation of Patents for Public Use?

In the year two thousand nine in Mexico was declared a national emergency due to the epidemic of human influenza AH1N1, which lasted from May 2 of that year and until August 20 of two thousand ten, according to the respective declarations of the General Health Council published in the Official Journal of the Federation. 

As a result of the declaration of an epidemic and the decline in the health of many Mexicans, there was a significant rise in the price of the ever-increasing demand for oseltamivir and zanamivir antivirals, medicinal products used to combat this disease and protected by patents in Mexico with the holder of the pharmaceutical laboratory of Swiss origin Roche in the case of the former and the holder of the Glaxo Smith Klinee laboratory in the case of the latter medicinal product. 

At that time of emergency, there was speculation about a latent possibility of satisfying the supply of this much needed drug through the granting of public utility licenses on patents as provided for in the Industrial Property Law, But were the conditions really right for this? , were these times of emergency, licensing time for the exploitation of patents for public use? For that it is first important to know what they referred to as public utility licenses? 

A utility licence is an authorisation to exploit one or more patents by a third party for the purpose of assisting in the proper production, presentation or distribution of medicinal products during a declared emergency or for national security reasons. 

It is for this reason that, since human influenza AH1N1 was decreed to be a serious disease of priority care, the opportunity to implement this legal assumption was seen to have been fulfilled in the first phase stipulated. However, this was not the case because the circumstances, at the discretion of the authority, did not meet the necessary legal conditions. 

In the agreement published on 19 May 2000, in addition to ratifying the human influenza AH1N1 as a public health emergency, the authority declared that there were no conditions that prevented, hindered or increased production, provision or distribution of medicines to the population, as preventive measures, public health policies in government purchases of antivirals such as oseltamivir and zanamivir, among others, to cope with the contingency, excellent disposition of patent holders as well as licensees of patented medicines, were of vital support to gradually mitigate the contingency and it was in this way that the attempt to implement the utility licenses on the patents of Roche and Glaxo disappeared. 

The unknowns that hover at this moment of Covid-19 pandemic that threatens to continue for several months more than this two thousand twenty, are: Have our institutions learned from the successes and mistakes made during the epidemic of human influenza AH1N1? , could they be more agile, effective and assertive in case it is necessary to implement and authorize public utility licenses on the patents of medicines that help combat the emergency? Or, again, will it all be a good try? 

We will have to wait for the answer to all these questions. 

In Bandala | Díaz | García we keep you informed about the most relevant patent issues, if you have any concerns about patents contact us.