Medical Countermeasures for Pandemic Response and Intellectual Property Rights

Abstract

The current article addresses the question of whether and under which circumstances access to medical countermeasures against pandemics, such as COVID-19, may constitute a community interest under international law. First, the intertwined concepts of global public goods and community interests are fleshed out. Second, the analysis expounds whether the protection against pandemics, including immunization, can be framed as a community interest, and which obligations would result. Third, the relationship between community interests and intellectual property rights as enshrined in international law is explored. Fourth, the conclusions try to reconcile the goals of international intellectual property rights and the protection against pandemics. Positive obligations to furnish medical countermeasures may not attain the consent of a sufficiently large number of states. Nevertheless, articulating the protection against pandemics as a community interest should entail obligations to refrain from resorting to international intellectual property law to impede developing patent-protected medical countermeasures in other countries.