Cape Town - Medics and lawyers are assessing the risk of patent infringements in public healthcare emergencies due to the Covid-19 outbreak, which has infected close to 800 000 people globally and left 34 658 dead.
An article written by Tim Ball and Naseema Sonday from law firm Webber Wentzel raises the question of how patented technology could affect the treatment of Covid-19 should a vaccine or cure be discovered.
"Even though there is yet no known vaccine or cure for Covid-19, a huge amount of research is being done, and there will hopefully be new vaccines and medicines produced soon. Although these are likely to be patented in due course, it is optimistic to expect that these new products will be ready to go to market now," the researchers said.
The duo claim patented technology holds the key to many solutions that assist medical professionals daily in the diagnosis and treatment of patients.
The research article noted that already there are reports of patents being asserted against suppliers of medical products to medical practitioners and hospitals struggling to cope with the pandemic.
"The objective of the patent system is to encourage innovation for the greater good of society, by rewarding innovators. However, the mechanism by which innovation is incentivised is by giving the patentee the right to exclude unauthorised persons from using the invention concerned," the researchers said.
An example of this was observed in Italy when a threat of patent infringement proceedings was reportedly made against people who were 3D printing copies of patented respirator valves after a local hospital had run out and was unable to get replacements from the authorised supplier.
Patents by virtue restrict access to a protected invention.
According to South African laws, the patent system is regulated in terms the Patents Act, which allows for state ministers to engage with the patentee to use the technology for the public in serious cases such as the Covid-19 pandemic.
The law also states that the "Minister of Health may prescribe conditions for the supply of more affordable medicines, which include permitting parallel importation of a patented medicine, notwithstanding contravention of the Patents Act. This provision may not be particularly helpful where unavailability arises from excessive global demand."