The Covid-19 pandemic being a global priority, the recent World Health Assembly (WHA) resolution has called upon countries for the removal of unjustified obstacles related to the provisions of international treaties including TRIPS and Doha Declaration on the TRIPS Agreement and Public Health.
Security exception under TRIPS Agreement
The above exception gives freedom to each member state to take any action including suspension of IP rights, and allowing disclosure of information in case it goes against their essential security interest. Three contexts are referred in this regard; first, fissionable materials and their derivatives; secondly, arms traffic or implementation of war and measures taken at the time of war or other emergency in international peace and security; and third, member states can suspend the commitment to implement obligations under the UN charter for the maintenance of international peace and security.
Russia-Ukraine case and Article 73
The language of Article 73(b)1 of WTO TRIPS Agreement is mirrored by Article XXI of the WTO General Agreement on Tariffs and Trade (GATT). The WTO Panel which examined Russia's invocation of Article XXI to deny the right to transit of goods from Ukraine upheld Russia's action. However, the Panel also held that though a WTO Member has the freedom to determine what constitutes an essential security interest, the Panel has the jurisdiction to examine whether the Member's determination is in good faith, and on the objectivity of the measures concerned.
Another debatable section is the meaning of the term "other emergency in international relations" in Article 73(b)(iii). This raises the question whether a health emergency like a pandemic falls within the scope of the term "other emergency in international relations". In the present situation, many WTO Members have declared health emergency and in the absence of a definition or explanation of the said term, a member has the freedom to determine what constitutes "other emergency in international relations". The WTO Member has the flexibility to define the term and to include not only military emergencies but also other emergencies including health emergencies.
India incorporated Article 73 in its IP legislations except the Copyright Act. The provisions of "government use" and "compulsory licence" in the Patents Act have their own limitations such as the usage is somewhat restricted only to authorised entities, cooling period of three years, time consuming process of granting and excess discretionary powers to the Controller of the Patent office, making the whole process a tedious exercise which is not considered to be relevant in an emergency situation like the current pandemic. Hence, the blanket provision to all IPs such as the security exception would be more effective. The security exception in Article 73 of TRIPS has been incorporated in Section 157A2 of the Indian Patent Act.
Section 157A allows the Central Government to not disclose any information relating to any patentable invention which is detrimental to the interest of security of India. The government can also revoke any patent which it considers necessary in the interests of security of India, by issuing a notification in the Official Gazette. The provision explains that "security of India" includes any action necessary for the security of India which relates to (i) fissionable materials or (ii) to the traffic in arms, ammunition and implements of war and other goods and materials related directly or indirectly for the purpose of supplying a military establishment. The explanation explains invoking the section for the security of India in the time of war. But on a closer look at clause (b)(iii), we can see that besides war it indicates 'other emergency in international relations' which has not been defined specifically. It is clear that 157A of the Act empowers the central government to suspend or even revoke patents in the security interest of India, which includes the "other emergencies in international relation". It is further arguable that the scope of Section 157A does not cover situations like health emergencies and covers only the traditional notion of security i.e. in the military context. However, as explained above, it is clear that the concept of security has expanded over a period of time and includes issues which pose threat to life and properties of people in a country, which do not necessarily emanate from military or war.
Footnotes
1. https://www.wto.org/english/docs_e/legal_e/27-trips_09_e.htm
2. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps157a.html
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