Section 104 of the Israel Patent Law states:
The Minister may permit the exploitation of an invention by Government departments or by an enterprise or agency of the State, whether a patent for it has or has not already been granted or has or has not already been applied for, if he finds that that is necessary in the interests of the National security or of the maintenance of essential supplies and services.
There are corresponding laws in other jurisdictions.
Israel has never invoked this law, but is planning to import a generic version of Kaletra to treat COVID-19.
Abbvie developed this drug for treating HIV, but it has shown somewhat unequivocal results in treating COVID-19 and we note that double blind tests of the drug on Corona sufferers in China were less than convincing.
That as may be, the drug remains patent protected in Israel until 2024, but has lapsed in other countries including India, which has developed generic versions.
In view of the pandemic, the Legal Advisor to the Government has authorized the Health Minister Litzman to import the generic version from India as Abbvie cannot provide sufficient quantities.
Section 104 has been around since the Israel Patent Law was passed in 1967, and over the past half century has never been used. The current health situation which has resulted in a national ban against congregating that has put the entire population under the equivalent of house arrest with the number of reported sufferers from the disease increasing exponentially is unprecedented. Thus the current situation seems to justify this extraordinary step.
However, to minimize the damage to Abbvie, the generic version will only be used to treat CORONA and not HIV.
Furthermore, it will be noted that Section 108 of the Law states that:
If a permit was granted under sections 104 or 105, then the State Treasury shall pay to the owner of the invention, to the patent holder or to the holder of an exclusive license, as the case may be, royalties set by agreement between the parties or – in the absence of agreement – set by the compensation and royalties committee.
In other words, Abbvie will eventually be compensated.
We hope and pray that this or some other drug is successful in treating this illness and our thoughts go out to the sufferers.