PHILIPPINES: IP MONOPOLY ISSUES IN THE POST COVID-19
ERA & COMPULSORY LICENSING
IP COLLEGIUM ANNUAL ONLINE MEETING( March 10, 2022)
EDITHA R. HECHANOVAMarch 10, 2022

1Copyright, 2018, Hechanova & Co., Inc.

Intellectual Property

TOPICS FOR DISCUSSION• TRIPS Waiver• The PHILIPPINES’ Stand• Compulsory licensing in the Philippines• Covid-19 Situation in the Philippines• Philippines Innovations/Inventions Related toCovid-19• Conclusion

PROPOSED TRIPS WAIVER• Obligations under TRIPS waivable under “exceptionalcircumstances”;• South Africa & India’s joint submission for temporary
waiver – Oct. 2020;• Revised text of waiver: applicable only to “health productsand technologies” for Covid-19 prevention, treatment andcontainment which would include vaccines, therapeutics,diagnostics, medical devices, and personal protective
equipment.

PROPOSED TRIPS WAIVER• Proposed minimum duration of the waiver – 3 years;• Subject to annual review;• Once the ”exceptional circumstances” rationalizing thewaiver cease to exist, the WTO will be required todetermine a date to terminate the waiver.

PROPOSED TRIPS WAIVER• Pro Waiver:(i) IP rights are barriers to needed increase in vaccine
production;(ii) Innovation on Covid-19 relief driven by government
funding and support, instead of IP rights.
• Against Waiver:(i) IP is incentive to innovation;(ii) No evidence that IP rights prevent access to Covid 19
medications and technologies;(iii) There are other factors affecting the manufacture anddistribution of vaccines.

PROPOSED TRIPS WAIVER• Waiver still under discussion;• EU counter-proposal seeks to simplify process of obtaining
compulsory license, e.g., waiving consent of patent owner,
declaring the pandemic as national emergency, lower thelevel of compensation of the patent owner;• WTO continues small group consultations and informalmeetings, and news is that it will reconvene on March 910, 2022.

PHILIPPINES STAND ON TRIPS WAIVER• No clear official stand yet;• Organizations and individuals supporting the Waiver:(i) Coalition for People’s Right To Health (CPRH) – putting
people over profits and patents, equity of access is aright to health; limitations muddle the argument forcompulsory licensing;(ii) The University of the Philippines supports thesuspension of the IP rules on the vaccines since thePhilippines need a rapid immunization natiowide;

PHILIPPINES STAND ON TRIPS WAIVER• Some senators in the Philippines Senate have initiatedproposals to support the TRIPS waiver. They believe thatthe waiver would help ramp up the global production ofthe vaccines without permission from the patent holders;• In the House of Representatives, the Makabayan bloc has
filed a House Resolution urging the government to supportthe waiver;• The Health Alliance for Democracy supports the waiverand proposes that the country start developing its own
drug industry to be not dependent on foreign industries;

PHILIPPINES’ STAND ON TRIPS WAIVER• The IPOPHL’s comment on the first draft of the waiver isthat the provisions are broad, vague and unclear, which
could result in unpredictable and unstable IP system, butwill submit to the decision of the inter-agency committeeof WTO matters;• The Department of Foreign Affairs supports the waiver;• The Department of Health (DOH) is carefully considering.

RA 8293 – GROUNDS FOR COMPULSORY LICENSING• TRIPS Agreement provides for compulsory licensing;• National emergency or circumstances of extreme urgency;• Public interest – national security, nutrition, health or thedevelopment of other vital sectors of the economy asdetermined by the appropriate government agency;• Manner of exploitation by patent owner is anti-competitive
as determined by judicial or administrative body;RA 8293 – GROUNDS FOR COMPULSORY LICENSING• Public non-commercial use without satisfactory reason;• Patented invention not being worked on in the Philippines
on a commercial scale, although capable of being worked
on, without satisfactory reason. Importation of thepatented article constitutes working or using the patents;• Demand for patented drug not being worked on to anadequate extent and on reasonable terms as determinedby the DOH Secretary.

RA 8293 – SPECIAL COMPULSORY LICENSE UNDER
THE TRIPS AGREEMENT (Sec. 93-A)

Importation of Patented Drugs & Medicines (93.A.1)• The Director General of the IPOPHL upon the written
recommendation of the DOH Secretary, shall upon filing of apetition, grant a special compulsory license for the importation ofpatented drugs and medicines;• Additional special alternative procedure to ensure access to quality
affordable medicines and shall be primarily for domestic
consumption;• Adequate remuneration be paid to the patent owner;• Reasonable measures to be exercised by the grantee to prevent reexportation of the imported products;• License immediately executory;• Only the Supreme Court can issue TRO or preliminary injunction orother provisional remedies that will prevent the grant of the license.

RA 8293 – COMPULSORY LICENSING
Period for Filing a Petition for Compulsory License• Patent not being worked on a commercial scale in thePhilippines: 4 years from date of filing, or 3 years fromgrant, whichever period expires last.
• All other grounds: may be applied for any time after thegrant of the patent.

COMPULSORY LICENSING

No application for compulsory licensing of a patent
involving Covid-19 had been filed before the IPOPHL.

COMPULSORY LICENSING - CASE
Smith Kline & French Laboratories vs. CA, BPTTT, Doctors
Pharmaceuticals (GR No. 121867, July 24, 1997)• Compulsory licensing of Cimetidine – request for Authorization tomanufacture its own brand from the drug Cimetidine;• Patent owner Smith Kline opposed stating that Respondent had nocapability to manufacture the product, and that it was capable ofsupplying the market;• Decision to issue license to respondent was made: (i) Respondent
had capability to work on the patent, (ii)applicant was able to showthat Cimetidine was necessary for the manufacture of ani-ulcer
drug, needed to promote public health.

COVID 19 INNOVATIONS IN THE PHILIPPINES
GenAmplify Corona Virus (Covid-19) rTR-PCR Detection Kit:

Photo from: https://www.ipophil.gov.ph/news/ph-universities-and-colleges-in-action-to-combat-covid-19/

COVID 19 INNOVATIONS IN THE PHILIPPINES
Powered Air Purifying Respirator (PAPR)

Photo from: https://www.ipophil.gov.ph/news/ph-universities-and-colleges-in-action-to-combat-covid-19/

COVID 19 INNOVATIONS IN THE PHILIPPINES
Bot Ensuring Safety and Health in Isolated Environment.

Photo from: https://www.ipophil.gov.ph/news/ph-universities-and-colleges-in-action-to-combat-covid-19/

COVID 19 INNOVATIONS IN THE PHILIPPINES
Sanipod Disinfection Cubicle.

Photo from: https://www.ipophil.gov.ph/news/ph-universities-and-colleges-in-action-to-combat-covid-19/

COVID 19 INNOVATIONS IN THE PHILIPPINES
Clean Intubate.

Photo from: https://www.ipophil.gov.ph/news/ph-universities-and-colleges-in-action-to-combat-covid-19/

COVID 19 INNOVATIONS IN THE PHILIPPINES
Reusable Face Mask.

Photo from: https://www.ipophil.gov.ph/news/ph-universities-and-colleges-in-action-to-combat-covid-19/

INVENTIONS/INNOVATIONS DEVELOPED BY
UNIVERSITIESOther Innovations Developed by Universities and Colleges.
• Batangas State University – 4 3D printing machines which can
produce 48 face shields a day• Bicol University – Faculty and students with a local company worked
on a design for face masks, and so far has distributed 200 pieces tobarangay frontliners• Capiz State University – produced and distributed about 3,000 faceshields to hospital frontliners• Cebu Technological University with 20 faculty and staff has
produced and distributed 400 face shields in 21 hours• De La Salle University produced and distributed about 1, 411 per
week of face shields to different hospitals all over the country• Iloilo Science and Technology University has produced anddistributed 1,000 face masks to frontliners in various hospitals

INVENTIONS/INNOVATIONS DEVELOPED BY
UNIVERSITIESOther Innovations Developed by Universities and Colleges.
• Mindanao State University and Iligan Institute of Technology
produced 3D printer face shields and distributed them to breadproducers• Negros Oriental State University produces 350 per day do it yourself
face shields and distributed them to various community hospitals
and health centers

IPOPHL – launched a site – Patent Information Reports related toCovid-19 available for use by anyone, free of charge.

PRES. RODRIGO DUTERTE – offering PHP50Million reward to anyFilipino who can produce a vaccine against Covid-19.

COVID SITUATION IN THE PHILIPPINES• For 2 months in 2020, the Philippines had the most number of
Covd-19 cases in Southeast Asia when it overtook Indonesia fromAugust 6 to October 15.
• At around October, 2021, the Philippines ranked 20 worldwide and3rd among the ASEAN countries.

COVID SITUATION IN THE PHILIPPINES

From: https://www.csis.org/programs/southeast-asia-program/projects/past-projects/southeast-asia-covid-19-tracker

COVID SITUATION IN THE PHILIPPINES

From: https://www.csis.org/programs/southeast-asia-program/projects/past-projects/southeast-asia-covid-19-tracker

COVID SITUATION IN THE PHILIPPINES• Because of the decreasing trend on Covid infection and death,starting March 1, 2022, the National Capital Region which includes
Metro Manila has been placed on Alert 1 level, the lowest among
the levels, which allow the following:(i) no restrictions in terms of indoor and outdoor capacities;(ii) everyone can undertake intrazonal and interzonal travel
without regard to age or comorbidities;(iii) all persons, establishments or activities are likewise
allowed to operate, work, or be undertaken total onsite(iv) all private offices, government offices may operate at full100%
Some protocols to be observed on Alert Level 1:(i) well-fitted face masks to be worn properly at all times;(ii) individuals 18 years old and above will be required topresent proof of full vaccination before participating in mass
gatherings or entry into indoor establishments.

CONCLUSION• The Philippines has no official position yet on the waiver;• The waiver will require amendment of the IP Code which
would take some time;• While there is no certainty that no surges or new variantsof the Covid-19 will evolve, at the present time, there
seems to be no urgency for the Philippines to support thewaiver;• The counter-proposal of the EU on simplifying thecompulsory licensing process appears to be worth
exploring.

THANK YOU FOR LISTENING!
For Questions: editharh@hechanova.com.ph