The typical justification for modern patent systems is that of incentive-based utilitarianism: there exists a level of IP protection that produces an optimal balance of production of intellectual works and promotion of social wellbeing. In prosperous times, this balance tilts to the side of protecting individual inventors’ works; however, in times of crisis, protection of intellectual works must take a backseat to societal concerns.
Our current global condition is an example of the scale sliding towards prioritizing the collective. The COVID-19 pandemic has propelled innovation, from vaccine development to improvement of technologies such as ventilators, antiseptics, and face masks. For instance, Quebec-based Medicago was successful in producing virus-like particles (VLPs), the first step in developing a vaccine. Elsewhere, firms are looking to repurpose existing drugs for novel use, such as the University Health Network’s investigation of anti-malarial agent hydroxychloroquine.
The robustness of a patent system depends on the ease with which the scale can be slid between protecting the two competing considerations mentioned above. The Canadian Patent Act contains provisions that allow the federal government to bypass the general consent requirements in order to use inventions otherwise protected by privately held patents. Sections 19 to 19.3 of the Patent Act permit the federal or provincial governments to apply to the Commissioner of Patents to authorize the use of any patented invention. Usually, the government must first attempt to obtain authority and demonstrate that such attempts have been unsuccessful before the Commissioner steps in. However, in cases of national emergency or extreme urgency, this condition is lifted.
While mechanisms for government cooption of patented inventions during emergencies already existed in the Patent Act, the unprecedented nature and scale of the COVID-19 pandemic propelled Parliament to pass Bill C-13, entitled the COVID-19 Emergency Response Act, which adds to the Patent Act’s existing provisions. New section 19.4 allows the Minister of Health to apply to the Commissioner to authorize the federal government, as well as “any [other] person” to commercially exploit a patented invention to respond to the public health emergency described in the application. While similar to existing provisions, section 19.4 grants novel powers commensurate with the scope and severity of the COVID-19 emergency. Firstly, the need for private-public cooperation is reflected in the Commissioner’s new power to permit authorization to other persons apart from the government. Secondly, the global nature of the pandemic would be inadequately addressed by the existing principle for authorization, which was to supply the domestic market (section 19(1)(c)). With the adoption of section 19.4, there is no explicit requirement that the public health emergency of national concern be located within Canada’s borders.
Parliament’s new power means that authorization to produce and distribute patented products can be given to private actors with the resources to produce goods at a sufficiently high level to combat the spread of COVID-19, and that such authorizations may be based on events taking place outside Canada. This last part is important: COVID-19 does not care about borders, and now neither must the Commissioner.
Written by Daniel Joseph, IP Innovation Clinic Fellow and JD Candidate at Osgoode Hall Law School
Bill C-13, An Act respecting certain measures in response to COVID-19, 1st Session, 43rd Parliament, 2020.
Patent Act, RSC 1985, c P-4.