The New Zealand government is already negotiating with pharmaceutical companies for access to vaccines that have not yet been fully developed and tested. However, some fear that those that develop the vaccine and control the patent may charge high prices and limit access.

So, if New Zealand’s government fails in its negotiations, it will have to look at its patent law to try to gain access to the drug product. When under a state of emergency, New Zealand law does allow compulsory licencing and use of patented products. However, under this law, such applications can only be made three years after failed negotiation with a patent holder. Contrary to this, in times of national emergency, international commercial law negates any need to negotiate with patent holders. An amendment to the current New Zealand law should be made that mirrors international law and includes a clear clause related to national emergencies. Currently, New Zealand and international law allow drugs manufactured under a compulsory licence to be exported to countries experiencing serious public health issues. This may be significant for the nations in the Pacific who are also in the grips of the pandemic.

Although the New Zealand government can gain access to patented inventions in times of emergency, drug products must continue to undergo full regulatory review. To gain a Medical Devices Safety Authority (Medsafe) approval a variety of information and data on safety, efficacy are required, and the process can be lengthy. This could delay access to potential vaccines in New Zealand and it has been suggested that if a vaccine has been approved in other regions, such as Australia, Canada or Europe, it should be able to gain automatic approval in New Zealand. In addition, under current legislation, generic versions of a COVID-19 vaccination could take five years to be approved. This is due to restrictions on the data used to approve generics, and it has been suggested that these be lifted to increase access to these vaccines by approving generic versions.

To ensure that New Zealand can gain quick access to a potential COVID-19 vaccine without hindrance, changes to its patent law are advised.

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