Patent and Pandemic: Exploring Duties, Obligations and Responsibilities

Abstract

Patents are based on a delicate policy to promote technological progress by incentivising the inventor and enabling others to participate in the innovation process through public disclosure. Patent being a property does not fit in the rigid proprietary framework, given its goal to promote the public good. The limits to patent rights on one hand and duties and obligations on the other complement patent rights, enabling the system to promote social good. However, in practice, an aggressive assertion of patent rights often ignores the duties and obligations recognised under the patent system. The “exclusivity” of patents imposes a duty on third parties to respect the patentee’s patent rights. However, while recognising the duties and obligations of the patentee, the patent systems put less emphasis on it in practice. Though limits to patent rights such as research exemptions, compulsory licences and governmental use are recognised statutorily and judicially, an appreciation of duties and obligations may produce a more pragmatic result. In the current pandemic situation, open and collaborative efforts such as Open COVID Pledge, non-assertion of exclusive rights on technologies and research tools assisting in the vaccine production reflect promising approaches. Nevertheless, the challenges as the accessibility and affordability of the potential vaccine are still on. Gandhi’s perspective on trusteeship could be contextualised in the patent realm to promote a duty-based regime in tune with the broader goals of patent policy. Against this backdrop, the present chapter explores the edifice and relevance of duties and obligations under the patent system in the light of contemporary challenges.