One of the most important Intellectual Property (IP) problems which the Pandemic Accord negotiators need to solve is now in danger of being completely ignored. This is the problem of guaranteeing access to ‘undisclosed information’, also known as ‘know-how’. Such undisclosed information is typically held in secret by pharmaceutical companies but can often be necessary to enable the large-scale production of pandemic countermeasures such as medicines, vaccines and diagnostics. If access to such undisclosed information is not guaranteed then, even if all the patent-related barriers are overcome during a future pandemic by compulsory licensing or otherwise, there will still be no certainty that the large-scale production of particular pandemic countermeasures will be able to take place. This would surely represent a critical failure of the Pandemic Accord process.
In the apparent absence of any other attempts to solve this problem, we therefore propose the following provision for insertion as a separate sub-section in Article 11 of the draft Pandemic Accord:
Article 11: Transfer of Technology
X. In addition to the undertakings in paragraph 1 of this Article, where the urgent manufacture by qualified third parties of a pandemic countermeasure is necessary to respond to a pandemic or the threat of a pandemic but the manufacture is prevented or hindered through lack of access to undisclosed information possessed by one or more private rights holders located in one or more Parties, that or those Parties shall compel that or those rights holders to share the undisclosed information with the third parties
We have discussed an earlier version of this provision here and here. A significantly weaker form of this provision was included in earlier drafts of the Pandemic Accord but now appears to have been removed entirely (latest draft 14.02.2024). We therefore urge the Pandemic Accord negotiators to introduce the above provision into the negotiating text so that it can form the basis for a robust solution to the know-how problem. It is not too late.