Intellectual property rights and free competition during the pandemic in the pharmaceutical sector

The COVID 19 pandemic has shown that the current legislation on intellectual property and free competition would not have been adequate enough to allow the population timely access to vaccines on an equitable basis as a result of distortions in the manufacture, distribution and sale of vaccines. against COVID-19.
It is intended to analyze from a legal perspective if the observed problems originate either in an inadequate application of the legislation that regulates intellectual property or eventually in the abusive exercise of such rights.

The Peruvian Competition Law establishes the power of INDECOPI to sanction anti-competitive practices that are linked to the abusive exercise of intellectual property rights, unfortunately to date there has been no case with these characteristics, which has limited studying this issue in depth. from the practical point of view. However, it is important to point out that there have been some cases that have involved issues related to intellectual property rights, such as the case of Telecable Vs. Telefónica and the case of Ambev Vs. Backus et al.
Decision 486 specifically establishes in which cases its member countries can grant compulsory licenses and also indicates what the conditions are. However, Decision 486 does not develop the concepts of public necessity, urgency or national emergency that we consider essential to define when to grant Compulsory Licenses and thus strengthen their exceptional nature. Additionally, it is necessary for the authorities to equip themselves with an adequate procedure that provides clarity and predictability to the economic agents involved. Indecopi has developed some guidelines related to these issues, but prior to COVID-19. Hence the need to update them.
The physical distribution of vaccines in Peru and in developing countries is an issue related to free competition, in the sense that logistics costs are reflected in the purchase price of the vaccines.