By Sanskriti Bahuguna
BBC reports that 1.3 million people in the UK have already received their first dose of the COVID-19 vaccine. In a disappointing yet unsurprising juxtaposition, Brazil, the country with the third-highest cases of the coronavirus, is scrambling to secure vaccines. This inequity can be attributed to the patent protection of the COVID-19 vaccine.
Before venturing any further, it is imperative to understand the relationship between pharmaceutical companies and patent laws. In short, a patent is a form of intellectual property (IP) protection that grants pharma-companies exclusive rights to make and sell their drugs for 20 years by preventing the supply of cheaper, generic versions by their competitors. They function as a reward to the rigorous research and development (R&D) in drug manufacturing and provide additional incentive for future innovations. This system has been ratified by various international treaties and subsequently national laws, however, as COVID cases continue to surge, concerns have begun to emerge on whether IP protections of a potential COVID vaccine will hinder its access.
Given that it is unviable for a handful of companies to manufacture COVID vaccines to meet global demand, and to provide a solution to the rising concerns of developing countries, South Africa and India jointly presented a patent waiver proposal at the World Trade Organisation’s (WTO’s) Trade-Related Aspects of Intellectual Property (TRIPS) Council in October 2020. It proposed a temporary suspension of IP protections to make vaccines accessible to all countries by allowing multiple actors to start production sooner, instead of having manufacturing concentrated in the hands of a few patent holders in rich countries. The proposal gained support from not only low-and middle-income countries, but also leading UN human rights experts.
Unsurprisingly, the pharmaceutical industry and High Income Countries (HICs), displaying a suspiciously united front, did not welcome the proposal, expressing the view that it will stifle innovation. An EU spokesperson went as far as to argue that there is no evidence that IP rights would hamper the access to COVID-19 medicines and technologies in any way. Furthermore, the HICs argued that equitable access could be achieved through voluntary licensing, technology transfer arrangements, and the donor-funded COVAX Advance Market Commitment for vaccines.
Most of these options are either impractical or outright senseless. Firstly, the fact that IP does not create access issues is false. There are numerous examples to illustrate this, such as the legal battle between Médecins Sans Frontières (MSF) and Pfizer in India over its pneumococcal vaccine, where a patent prevented the development of alternative versions of the vaccine. A similar situation followed in South Korea where Pfizer sued SK Bioscience, creating an absence of affordable PCV-13 vaccines in the market.
Voluntary licensing is the practice of IP-holders to voluntarily grant their patents and IPs. To illustrate, Pfizer, the company with the most reliable vaccine refused to forfeit its patent even when it uses elements of public research. Compulsory licenses, on the other hand, serve as the mechanisms for governments to override patents, copyrights, or industrial designs, which provide access to patents without the holder’s consent. In practice, the issuance of individual compulsory licenses is a time-consuming process, which may be contested by the technology owners. Additionally, the HICs have displayed a pattern of threatening Low Income Countries (LICs) with WTO disputes when they attempt to claim an exception. Interestingly, none of the rich countries have opted for the compulsory licencing route, choosing to instead collaborate with big pharmas by drawing up exclusive vaccine contracts.
Thirdly, whoever contended that technology transfers work is simply incorrect. Tech transfer via company-led initiatives has delivered insufficient results. For example, AstraZeneca’s vaccine agreements with Indian and Brazilian companies lacked transparency on the costs. Additionally, Pfizer and BioNTech showed no sign of licensing or technology transfer of their patented products. It is understandable that an industry which capitalises on the exclusivity of information and technology seldom participates in its exchange without attached mistrust and reluctance. Even when a transfer does take place, most LICs are not in a position to take advantage of the information after they access it due to infrastructural and capital constraints. These acts of goodwill mostly end up serving as mere PR strategies, as demonstrated by the virtually unused COVID-19 Technology Access Pool proposed by Costa Rica.
Moreover, the COVAX initiative is an ambitious collaboration led by the WHO, aiming to procure 2 billion doses of the vaccine. However, it has been riddled with shortages of funds, requiring $23.9 billion in 2021 to fulfil its goal. More problematically, Duke University reports that COVAX has secured only 700, 000 vaccine doses so far. In comparison, HICs reserved 6 billion doses for themselves through bilateral deals with pharmaceutical companies.
HICs have benefited from being home to the leading pharmaceutical companies and possessing the economic and infrastructural means to conduct mass rollouts. Rich countries with 14% of the world population managed to stockpile 53% of the eight most promising vaccines, a feat most reminiscent of the 2009 Swine Flu. They blocked the IP waiver that could have helped achieve timely and affordable access to vaccines for all countries. It is unfathomable that the HICs actively chose to side with pharmaceutical giants that are only focused on reaping the highest profits, during a global pandemic.
These acts of greed were to the detriment of poor countries. Nearly 70 poor countries could not vaccinate 90% of their populations this year, whilst Canada alone hoards 10 doses per citizen. Pfizer and BioNTech gear up to make £9.8bn from the coronavirus vaccine whereas more than 150 million people will be driven into extreme poverty as a consequence of the pandemic. It should not be a radical statement to believe the patent for a COVID vaccine should be owned by all of us or no one at all. Researchers at Duke believe that there won’t be enough vaccines produced for the whole world before 2024. It seems that first world countries in their greed have forgotten about the cardinal rule of viruses: no-one is safe until we all are.
Sanskriti is a first-year student at the University of Bristol with a keen interest in intellectual property rights, particularly, patents and copyright.
Rich Law, Poor Law 