On the news from RDP-Africa radio station, broadcasted
on Friday, 10th of April 2020, at 12h00 in Maputo, a specific report caught my
attention. It alluded that in Spain a car manufacturer has developed a ventilator
based on windshield wiper motors functioning. It further stated that the
ventilators will be made available to health services in Spain with the aim to
combat covid-19. Further details were to be given at end of the news. The
inventors decided not to register the invention, so that such invention should
not fall under their Intellectual Property Rights and thus allow the countries
that need it most (especially in Africa and Latin America) to manufacture their
own ventilators based on this invention[1].
We are faced with an extraordinary form of altruism. In contrary to the people
and companies who seek to take advantage in the current situation by increasing
food, products and essential protection equipment used in the combating of this
pandemic, these inventors made their invention for the purpose of having it
accessible free of charge.
This and other situations really motivated me and I
thought, it could be useful to revisit what our current patent legislation
provides for cases whereby inventions are created and used in combating
pandemics or other dangers which
represents a threat to public health.
National legislation
Under
the national legislation, every national inventor enjoys the legal protection for
their rights duly provided for in the article 74 of the Industrial Property
Code (hereinafter IPC). In effect, the current legal provision stipulates in
paragraph 1 that “Without prejudice to any other provisions of this chapter, the patent
holder enjoys the following exclusive rights relating to the invention: a) Exploit
the patented invention; b) Grant or assign of the patent; c) Conclude license
agreements for the exploitation of the invention; made; d) Opposing the improper
us of the patent”.
What this means is that, albeit the right to use or
explore, patent holder also enjoys the right to conclude
different types of contracts with potential interested parties, as well as exercising
his right to prevent that such patent may not be used by third parties without
his permission. Failure to do so is legally regarded as a breach of the
exclusive rights of the patent, provided for and duly punished in accordance to
the provision contained in the article 214 of the IPC - (Industrial Property Code).
However,
there are exceptions to this rule, in that, it can be motivated by certain
situations, for instance, as the outbreak of pandemics, such as the one that is
currently devastating the entire world. Mandatory License is the legal
mechanism which provides for the said exception, duly stipulated in the article
92 of the IPC. This mechanism is accessed
or activated whenever there are justified reasons of public interest, namely
when the invention is crucial for combating public health issues. The relevant
Ministry, in this case the Ministry of Health authorizes the exploitation of
the invention, upon request addressed to Industrial Property Institute- IPI[2].
For
extreme situations such as the national emergency, the compulsory license is
applicable however the requesting therefore is not required. The Government,
through the relevant Ministry, simply authorizes the use of the invention for
as long as necessary, provided it is aimed to contain the pandemic. This is in
reference to the Principle of Proportionality which according to BARBOSA, Denis
(2003), its
application requires that “(…)- the principle
of proportionality is applicable whenever we are confronted with two
constitutional requirements - the protection of property and that of social
interest.
It is emphasized that the collective interest
will only prevail to the exact extent, and no further action will be needed to
satisfy that interest. In essence, this means that the actual compulsory
license, in accordance to the constitutional parameters, cannot exceed the
extension, duration and indispensable form with the excuse of serving the relevant
public interest, or to repress the abuse of the patent or that of the economic
power”[3].
Let
us assume, for example, a Mozambican national invented something that would
help in the fight against Covid-19, and during the period of time in which the Government
declared a state of emergency, in this case, the government could resort to the
mandatory license as to limit the exclusive rights of the patent holder and,
thus, authorizing the exploitation of the invention by third parties. However,
it is still important to state that the interests of the inventor will always
be taken care of. In effect, under the terms of paragraph 6 of article 92 of
the IPC, "the patent holder
receives an adequate remuneration, paid by the beneficiary, adjusted to each
specific case, taking into cognisance the economic value of the patent".
In the case of the discovery of the pandemic cure, the remuneration should not
be paid by each person who benefited from such cure, it should be paid by the
Government.
International
legislation
The protection of intellectual copyrights has as its
regulating cornerstone the Paris Convention dated back on the 20th of March
1883, whose sole mandate is to protect the industrial property of which
Mozambique is a signatory member state[4].
The
convention gives the newly joined member states of the Union the prerogative to
include in their national legislation provisions on mandatory licensing, as a
way to “prevent abuses that could result
from the exercise of the exclusive right conferred by the patent, as, for
example, the lack of exploitation”. As it can be seen, the enumeration is
exemplary, therefore an extensive interpretation of this standard must be made,
and it should include situations such as the state of national emergency,
threats or danger to public health, among other things.
A
similar provision is also found in the Trade-Related Aspects of Intellectual
Property Rights (TRIPS) Agreement on Trade-Related Aspects of the Intellectual
Property Rights (TRIPS). This agreement remains by far the broadest
international instrument enacted for the protection of intellectual property
and is binding on all the member states of the World Trade Organization. In its
article 31 with the heading “other uses
without authorization of the right holder”, the agreement establishes that
member states may authorize the use of the invention by third parties, provided
that the respective national laws make provision for such. It also defends that
the use by third parties must be communicated to the right holder, but such
communication is not required "in cases of emergency or other
circumstances of extreme urgency or in cases of non-commercial public use”[5].
As you might easily attest to, our IPC (Intellectual
Property Code) is in line with current international legislation in as far as the matter under scrutiny here
is concerned. Nor could it be otherwise because Mozambique has joined and
accepted these Agreements, thus being included in its national legal system .
The Social Function
of the Intellectual Property
The
legal provisions discussed above is intrinsically linked to ensure the
authorized use of patents by third parties and this is regarded as being an
integral part the doctrine known as the Principle of the Social Function of the
Intellectual Property and it derives from an understanding that albeit Intellectual
Property Rights in general, and that of patents in particular, it ensures that
their holders enjoy the protection and exclusive right of their use, these rights
should in essence, whenever needed, play a social role as a way of helping
countries to meet their social development goals. In a nutshell, intellectual
property must be subject to the imperatives of national interest, once again,
whenever needed. In other words, every single holder of an intellectual
property right has a duty towards his community, that is, his property should
be serving the community whenever there are justified reasons for so doing.
VARELLA,
Marcelo (1996) cited by CARVALHO, Thiago and THOMÉ, Karim (2015) emphasized
that “the social function is a limit
found by the law-makers in order to outline the property, in compliance to the
principle of the supremacy of the public interest above the private interest”.
From
this legal premise, it is clear that the social function of property is not a
restriction on the property itself, but on its misuse. According to BARBOSA,
Denis (2003) "the social function would be all transcendence of the
selfish interest". This means that the holder of the right should give up
his personal interests and accept that such personal interests should in
essence serve the community at large.
For instance, in Mozambique this principle is in line
with the very nature of the State clearly defined in the ambits of the
Constitution of the Republic, thus establishing in the article 1 that “Mozambique Republic is an independent, sovereign,
democratic and social justice state”. As result of this definition there is
an alignment of the entire organization and the action of the state to reach
this goal[6].
Concluding
remark
Mozambique
being regarded an undeveloped country, without any technological advancement
out there, people do not consider the hypothesis that, in the near future, a
great invention of national or international impact will emerge. In fact, an in
depth reading of the Industrial Property Bulletin published monthly by the IPI
clearly reinforces this perception, because the inventions so far registered by
our inventors are commonly regarded as “small patents” thus of a low impact
nationwide, simply because they are not well developed inventions even though
they were made to address and meet the basic needs and challenges faced by
communities.
Notwithstanding this, one cannot discredit or ignore
the human ingenuity which at any given time can lead the invention of something
of with a national impact and repercussion, may it be for combating the
pandemic, or find a solution to eradicate a chronic problem of hunger or
malnutrition which should not be overlooked as it still remains a challenge in
the country affecting large percentage of Mozambicans, or an invention to solve
an eventual technological “blackout” in the national financial system, among
several other situations. In such case, it should be necessary to carefully
analyse the situation to assess how best a particular interest of the invention
and the needs of the community can be reconciled.
[1] Here’s a link of the audio extract of the news https://www.rtp.pt/play/p5442/e466418/noticiarios-rdp-africa. For more updates or development on the subject, please click right
here https://www.seat.pt/empresa-seat/noticias-auto/novidades-seat/a-seat-inicia-a-producao-de-ventiladores-de-emergencia-nas-suas-instalacoes-de-martorell.html.
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