On compulsory licensing of trade secrets to safeguard public health

In the pharmaceutical sector an increasing number of new medicines are large-molecule products, i.e. biologics that are derived from living organisms, rather than small-molecule chemical drugs that were prevalent in the past. As the complexity of pharmaceutical innovation has increased, so has its protection. While patents were traditionally the primary vehicle for protecting exclusivity over medicines, this is no longer the case – in addition to patents companies increasingly rely on trade secrets. This has brought to light legal, political, and practical challenges in providing a fair balance between the protection provided to the technology owner and securing public interest in accessing such technologies, especially in times of emergencies. In this article we ask whether the current intellectual property law system can provide this balance, or whether there are limitations in the current law that suggest reform. We then review the legal, political, and practical constraints to such reform. Finally, we provide the outline of a legislative proposal for the compulsory licensing of trade secrets.