Renunciation of intellectual property of Ukrainian medicine becomes a ‘matter of life or death’
Patent attorney Olga Gurgula can’t quite explain why she was forced to visit her parents in Kyiv the week before the February 24 Russian attack on Ukraine. All the Brunel University law school senior professor can remember is that she became terrified that an invasion was imminent.
“I just had this terrible feeling that something [was] will happen,” she recalls. “I was very worried that if the invasion happened, no one would be able to help them.”
Gurgula helped her parents escape to a relatively safer place. She then returned to England but has since moved back and forth, focusing on using her expertise as an intellectual property lawyer to help her country.
She recently suggested a bill that would help Ukrainians access essential medical supplies. When the war broke out, pharmacies were completely empty, says Gurgula.
“You couldn’t find antibiotics, painkillers or even insulin,” she says. “It’s a matter of life and death for people with chronic illnesses or serious life-threatening illnesses.”
In addition to the devastating immediate impact of civilian deaths from Russian attacks, Gurgula says, the war has also produced a “huge” health crisis due to shortages of medical supplies.
“Humanitarian aid is helping but, given the scale of the tragedy affecting the majority of Ukrainians, it is not enough,” she adds.
Gurgula, whose research focuses on the impact of patent law on the availability of pharmaceuticals, saw a possible solution in Ukraine’s generic drug manufacturing industry.
“[Companies] would be able and willing to produce essential medicines, but some of these medicines are protected by intellectual property rights,” says Gurgula, adding that these protections prohibit local companies from making generics.
The country is also unable to import certain drugs because they are protected by patents which prevent the import of generics, she points out.
The bill, crafted by Gurgula and his colleagues at the Ukrainian Institute of Intellectual Property and a major patient organization, is, in effect, an intellectual property waiver.
If passed by Ukraine’s parliament, it would allow the country’s generic manufacturers to legally produce essential medicines and allow the country to circumvent World Trade Organization bans on the production and import of generics.
Gurgula maintains that she proposal is lawful under the “security exceptions” provision contained in Article 73 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This provision allows member states to waive intellectual property rights in certain circumstances, such as war.
“It allows you to suspend your obligations while protecting the essential interest of state security, such as savings [the] life and health of Ukrainians,” she explains.
This bill is currently awaiting debate in the country’s parliament.
Gurgula has a story to work on improving the IP infrastructure of his country. In 2018, she was Research Coordinator on a project led by Queen Mary University Law School and funded by what was then the UK Department for International Development, which aimed to establish a specialist intellectual property court in his native Ukraine. This work would have borne fruit had it not been for the outbreak of war. The new tribunal was to be created later this year.
She is not alone in her fight to help her country. As part of efforts to help Ukrainian colleagues, the international intellectual property academic community has stepped up. The University of Strasbourg in France, the Max Planck Institute in Germany and other institutions across Europe have granted visiting fellowships to Ukrainian scholars with the aim of bringing them to safety and helping them continue their work.
At the start of the war, German-Swedish national Timo Minssen, a professor of biomedical law at the University of Copenhagen, drove to the Ukraine-Poland border to pick up one of his former doctoral students. and his family. He was unable to communicate with his former student at the time, but took another Ukrainian family and their dog to safety in northern Denmark. his former student and his family finally arrived in Copenhagen.
Minssen has also reserved its academic department’s visiting scholars fund for Ukrainian scholars.
“All of this help, and what other institutions are doing, including helping intellectual property scholars continue their work, is just incredibly important and greatly appreciated by us,” says Gurgula.
As per usual ? Continuation of activities as General Counsel
Andrii Humenchuk remained in Ukraine throughout the war, partly in response to calls from the Ukrainian government to help protect the country’s economy by continuing operations.
Humenchuk, general counsel for Ukrainian e-commerce retailer EVO, has handled legal issues inconceivable for a peacetime GC, such as helping employees comply with martial law and conscription requirements.
The company is headquartered in Kyiv, but many of its employees have fled to the relatively safer Ukrainian city of Lviv, or to Poland, Italy and other countries.
At the start of the war, Humenchuk lost one of his colleagues, who was shot dead in the suburbs of Kyiv while trying to help bring elderly residents out of harm’s way.
“The first two or three weeks were the most difficult, including psychologically,” recalls Humenchuk. “You couldn’t understand the fact that people were being killed, and at the same time you had to at least try to help your business and respond to the government’s insistence that Ukrainian businesses open an economic front. . . to help with economic recovery and provide people with jobs and ways to earn an income.
EVO was not only able to continue, but served the war effort by lending its logistics operations to help provide needed equipment for civilians and the Ukrainian military, including helmets, protective vests and medical supplies.
As a GC on an e-commerce platform that helps Ukrainian businesses market and sell their products, a big part of Humenchuk’s team’s job was to protect the intellectual property of sellers on its site, even before the war. But this need grew and became more complex when Russia invaded his country.
“We saw more incidents of IP infringement when hostilities broke out,” he says, adding that opportunistic counterfeiters seemed to take advantage of market disruptions, “and dealing with them in other jurisdictions became more hard”.
Communication lines have become unreliable. Even corresponding with opposing counsel and meeting filing deadlines became difficult as his staff had to deal with the realities of life in a beleaguered country. Yet he was heartened by the treatment he received from lawyers in other jurisdictions.
“What struck me was that we received no mercy,” he said. “Relationships have been very respectful and tolerant. Everything was very professional, both from a legal and human point of view.
Bruce Love is a freelance journalist and reporter in Washington at the National Law Journal