Saving Ukrainian lives during the russian war: Ukraine must waive IP rights under Article 73 TRIPS to provide access to essential medicines

Abstract

Copyright © 2022 The Author and German Association for the Protection of Intellectual Property and Copyright e.V. In light of the severity of the health crisis in Ukraine due to the Russian aggression, the Ukrainian government must urgently implement expeditious solutions to increase the supply of essential medicines and medical products. One such measure is to exploit all existing domestic manufacturing capacities that are still intact and seek any potential possibility to import essential medicines from abroad. For this, all the barriers would need to be eliminated, including those in the form of intellectual property (IP) rights that might protect many essential medicines that are currently needed in Ukraine. This article argues that the existing mechanism of compulsory licensing under TRIPS and Ukrainian IP law is not effective to resolve the problem of access to medicines during such a critical situation as the ongoing war. It therefore suggests that Ukraine must immediately waive all IP rights related to essential medicines and medical products to enable the domestic production and seek any potential import of generics and biosimilars of essential medicines. Such a waiver would be justified based on ‘security exceptions’ of Art. 73(b)(iii) TRIPS. This provision allows a WTO member to utilise measures to protect its essential security interests taken in time of war. It is hoped that this article will provide guidance to the Ukrainian government on the most effective way to deal with the current health crisis in Ukraine and, thus, would help to save lives of millions of people in Ukraine that suffer from Russia’s unjustified, horrific aggression.