Theory and practice of intellectual property
№ 6 / 2021

ISSN (Print) 2308-0361
ISSN (Online) 2519-2744

PDF (Ukrainian)

DOI: https://doi.org/10.33731/62021.249080

Published      2021-12-27

Keeping the balance of public interests and the interests of the subjects of patent rights in the codification of legislation in the field of intellectual property

Oksana Kashyntseva
Ukraine
https://orcid.org/0000-0002-2598-5614

Yaroslav Iolkin
Ukraine
https://orcid.org/0000-0002-9030-6809

Abstract
The article concerns the expediency of codification of legislation in the field of intellectual property on the basis of the principles of policy development of pharmaceutical nationalism or pharmaceutical independence of the state. Modernity encourages to determine the principles of intellectual property law on the basis of «collective knowledge», to put the intellectual property right to serve the interests of society and provide appropriate incentives for scientific activity. The new spirit of intellectual property dictates the policy of introducing exceptions to intellectual property rights for objects used in the fight against COVID-19.

Special attention should be paid to the formation in the world, on the one hand, of a policy of «pharmaceutical nationalism», which provides for protectionism in relation to the national producer, and on the other — the policy of priority of public interests over intellectual property rights. Today, this issue is particularly acute in the context of limited access to vaccines against the background of free production sites of generic companies. Therefore, when determining the conceptual approaches to the codification of legislation in the field of intellectual property, the international experience of maintaining such a balance should be taken into account.

The path of harmonization of human rights and intellectual property rights has certain social and economic obstacles, overcoming which requires significant efforts of public organizations, rethinking the established paradigms of the scientific community and the political will of international organizations.

The pandemic has only strengthened our sense that modern science is supranational, it has long been beyond the geographical and beyond the human imagination. That is why the monopolization of its results has become a dangerous phenomenon for a society that has lost the ability to control the processes within itself and has become dependent on external processes, which are controlled by a small percentage of intellectual property market participants.

Today, Ukraine has become an Eastern European hub in the field of harmonization of private and public interests in the field of health care with the mechanisms of intellectual property rights, and the ongoing patent reform is a breakthrough success.

It should be noted that although it is extremely important for Ukraine to be able to use the flexible provisions of the TRIPS Agreement, both for the production of vaccines and over time for drugs for specific treatment KOVID, the Government should keep in mind the need to clarify the production capacity of domestic producers, to allow the production of such vaccines and drugs exclusively for the national market, at least at the first stage, as the priority is to meet the needs of the national patient. And, of course, compulsory know-how licenses (trade secrets) should contain provisions limiting the time and number of doses produced by analogy with compulsory licenses for inventions.

Keywords: intellectual property, codification, human rights, private interests, public interests, exclusions, medicines, patents

References

United Nations Millennium Development Goals.
https://www.un.org/ru/documents/decl_conv/declarations/summitdecl.shtml

The Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property.
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Breakthrough success as reformed patent law enters into force in Ukraine.
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WTO Agreement on Trade-Related Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 15 April 1994, as amended on 23 January 2017.

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Biden backs COVID-19 vaccine patent waivers.
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Arianna Schouten, «Canada based Biolyse Pharma Seeks to Manufacture COVID-19 Vaccines for Low Income Countries, may test Canada’s compulsory licensing for export law», KEI, 12 March 2021.
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