First of all, and taking into account the social responsibility of the researchers, we understand that, once the vaccine is developed, the owners of the vaccine will very likely agree to grant favourable contractual licenses for the good of humanity.
However, and in the hypothetical case that this does not happen, patent regulations have sufficient mechanisms to deal with these cases of health emergency.
Therefore, even if no voluntary licenses were granted, the State could compel one or more companies to grant them in order to ensure supply. For example, the Spanish Patent Law, in its Articles 91 and 95 say the indicated below.
Article 91. Assumptions of compulsory licensing.
The granting of compulsory licenses on a certain patent will proceed when one of the following cases occurs:
[…]
- d) Existence of reasons of public interest for the concession.
Article 95. Compulsory licenses for reasons of public interest.
- For reasons of public interest, the Government may submit, at any time, a patent application or a patent already granted, to the compulsory licensing regime, thus providing for it by royal decree.
- It will be considered in any case that there are reasons of public interest when:
- a) The initiation, increase or generalization of the exploitation of the invention, or improvement of the conditions in which such exploitation is carried out, are of primary importance for public health or for national defense.
- b) The lack of exploitation or the insufficient quality or quantity of the exploitation carried out implies serious damage to the economic or technological development of the country.
- c) The national supply needs so require.
- The royal decree referred to in section 1 must be agreed upon at the proposal of the Ministry of Industry, Energy and Tourism. In cases where the importance of exploiting the invention is related to public health or national defense, the proposal must be formulated jointly with the Minister responsible for health or defense, respectively.
- The royal decree that establishes the subjection of the patent to the compulsory licensing regime may directly establish, in whole or in part, the scope, conditions and license fee in the cases provided for in article 97.2, or remit the fixing of such conditions to the appropriate procedure before the Spanish Patent and Trademark Office provided in the following chapter for its concretion in the resolution granting the license.
- When the subjection to compulsory licensing for reasons of public interest is due to its importance for national defense, the possibility of requesting such licenses from one or more specific companies may be reserved.
Maria Carcelén
05/22/2020
