French pharmaceutical giant Sanofi CEO Paul Hudson sparked debate last week stating that the US market would be given priority over pre-orders of any vaccine for the coronavirus because the US had “invested in taking the risk”.

It’s a curious statement given that Sanofi is a French pharmaceutical giant.

It is choosing to prioritise the citizens of another country over its own nation’s citizens on the pretence of the US’ investment. That is despite the clear and undeniable fact that Sanofi itself must have invested in taking the risk. Mr Hudson has now backed down from that position and is vowing equal access for everyone.

It raises the question of what dirty deals may have been done to ensure the US obtains the first rights to a cure. And will first rights make any difference whatsoever?

In the normal model of pharmaceutical development, a patent would be obtained for the treatment which grants the pharmaceutical a monopoly over the treatment. This would mean the pharmaceutical had the right to exploit the patent and manufacture and distribute the cure as it sees fit and excluding others. However, these are very strange times.

Technically the Crown could exploit a loophole in Australian law to ensure it can manufacture and distribute any vaccine. Under Australian law the Crown could exploit the Crown use exception and force the patent holder to licence the patent to the Australian government.

A team of Australian researchers in March claimed they’d found a possible cure with University of Queensland Centre for Clinical Research director Professor David Paterson telling media one of the medications, given to some of the first people to test positive for COVID-19 in Australia, had already resulted in “disappearance of the virus” and complete recovery from the infection.

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A big focus now will be on patenting a cure once it is created.

The spectre is that some global financial heavyweight will exploit the cure and make trillions from it such as Sanofi. The fear is also that the heavyweight will attempt to hold the cure back from others.

We are being warned to prepare for the “long haul”, with the possibility that extreme measures just implemented could last for up to 18 months until a coronavirus vaccine is fully developed.

This has raised the question of who would financially benefit from the patent rights to any vaccine? The hunt is happening worldwide but we need to appreciate that, in Australia certainly, there is an exception in the Patents Act for Crown use.

The exception originated in wartime so that in times of war the Crown could exploit intellectual property – for a fair price.

If our population is at risk, the government could step in and make use of the cure. However, we believe Australia would likely ensure any cure found here was shared around the world.

A virus cure is a form of intellectual property and as such, can be legally protected and sold.

But according to ABC reports there’s a push for governments and pharmaceutical companies to pool intellectual property rights to allow widespread, low-cost manufacturing of any vaccine that is developed.

The issue is on the agenda at the virtual meeting of the World Health Assembly, the governing body of the World Health Organisation.

The European Union has a draft resolution for voluntary pooling, but prominent international leaders and non-government organisations want it to be mandatory.

The Australian government supports global co-operation during the pandemic.

ABC reports that under the EU proposal, any government, pharmaceutical company or organisation developing COVID-19 vaccines or tests could choose to give the IP to the WHO. It would then license production by manufacturers around the world at affordable prices.

This has previously been done with the meningitis A vaccine, and allowed it to be produced for as little as 40 cents per dose.

However more than 100 current and former leaders of nations and international institutions and leading researchers have called for mandatory worldwide sharing of all COVID-19-related knowledge, rather than a voluntary sharing of it.

If that occurs there will be no need for the Crown to rely upon the Crown use exception.

Nicole Murdoch is a principal at EAGLEGATE Lawyers.