Access Denied: the Role of Trade Secrets in Preventing Global Equitable Access to COVID-19 Tools

Abstract

The COVID-19 emergency has intensified a long-running debate over access to health technologies by illustrating the conflicts between intellectual property (IP) rules and global health objectives. While this debate has traditionally focused on patents, the pandemic brought to light concerns over other forms of IP such as trade secrets and other confidential information. During the COVID-19 pandemic, the UK government made extensive reference to trade secret provisions as a way of restricting transparency during public procurement procedures. Pharmaceutical companies relied on trade secret protection to prevent other companies accessing manufacturing methods of COVID-19 vaccines and other commercially valuable information. In non-pandemic times, the UK government withholding certain procurement information, and private companies refusing to reveal trade secrets, may in limited circumstances be justifiable to protect commercially sensitive information. However, in the context of a global emergency such actions must be questioned. This report provides a critical analysis of these issues, concluding that greater transparency is required in the public procurement process - especially in a time of emergency - to ensure a fair and equitable allocation of resources, and to guarantee accountability on the part of both the UK government and the pharmaceutical industry. We explain that the UK government prioritised trade secret protection over transparency during the public procurement of COVID-19 vaccines, and that pharmaceutical companies utilised trade secrecy strategies to prevent generic manufacturers from producing vaccines. We explore how this prevented good governance and denied equitable access to COVID-19 health products. We set out recommended legal and policy options to ensure that access to pandemic health tools is not denied again during emergency circumstances. Our recommendations cover transparency, technology transfer (including involuntary technology transfer in the form of compulsory licensing of trade secrets), fair distribution of IP ownership, competition and open innovation. Keywords: Trade secrets, COVISD-19, UK Government, pharmaceutical companies, access to medicines, transparency, technology transfer, compulsory licensing, fair distribution of IP ownership, competition and open innovation