COVID-19, Pandemics, and the National Security Exception in the TRIPS Agreement
As a result of the COVID-19 pandemic, a number of scholars and commentators have suggested that states can invoke the national security exception in Article 73(b)(iii) of the TRIPS Agreement to enable the suspension of patent laws in order to facilitate the production and importation of patented medicines and vaccines. This article therefore critically assesses the extent to which states can realistically invoke the national security exception in response to the COVID-19 pandemic. Drawing on two recent rulings by WTO Panels in both Russia – Traffic in Transit (2019) and Saudi Arabia – Intellectual Property Rights (2020) where the nature and scope of the national security exception was analysed, the article acknowledges that states may be able to invoke the national security exception in response to pandemics such as COVID-19. However, the article contends that the invocation of the national security exception in this context may not actually be helpful to states that do not possess local manufacturing capacity. Furthermore, the article argues that the national security exception cannot be used to obviate the strictures contained in Article 31bis of the TRIPS Agreement. It is therefore doubtful whether the national security exception in the TRIPS Agreement is a realistic option for states that do not possess local manufacturing capacity.