Covid Vaccine Patent: Should It Be Free and Open?

Even as a debate rages around whether Covid-19 vaccines and drugs should be patent-free, here’s a dossier on the whys and hows of the burning issue.

Had he kept the patent for penicillin, Sir Alexander Fleming would have become a billionaire or more. But he hadn’t. The Scottish scientist who discovered penicillin, an antibiotic that’s been saving people from diseases such as TB and syphilis, chose to serve the greater common good and offered the intellectual property rights of penicillin free for all. 

Fleming is remembered for his grand, humane gesture even today, at a time when the world is battling a pandemic and there is a heated debate around whether the IP rights of the Covid-19 vaccines should go to the commons or not. 

Any kind of intellectual property is covered by the patent laws and vaccines are no exceptions. Now, keeping in mind the unprecedented chaos caused by the Covid-19 pandemic, the demand for an exception has started to gain momentum.

In October 2020, South Africa and India called for the World Trade Organization (WTO) to suspend intellectual property (IP) rights related to Covid-19 vaccines. The basic argument for the proposal was that it would make vaccines more affordable and allow relatively poorer/ developing countries to acquire more doses easily.

The suspension would allow local manufacturers to start production sooner, instead of having manufacturing concentrated in the hands of a small number of patent holders. The proposal was supported by more than 100 countries, mostly lower- and middle-income nations, and strongly opposed by some of the world’s largest economies including the European Union and the United States.

Since then, things have changed, although without any real impact. The current Democratic leadership of the US supports the waiver and along with it, Pope Francis has come out in support of waiving intellectual property rights for Covid-19 vaccines.

Patent laws, universal healthcare access and WTO

For starters, a patent is an exclusive legal right for the intellectual property granted by a sovereign authority to a concerned party for their idea /innovation /invention. It provides the owner with the rights to exclude others from making, using or selling an invention for a limited period of time.

Patents are also available for significant improvements on previously invented items. The objective of this system is to foster the inventors to improve the state of technology by bestowing them special rights to benefit from their inventions.

A historical perspective to the patent debate

The Uruguay Round of negotiations (1986-1994) led to the formation of the WTO in 1995. With it came the 1995 agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) into being. The general goals of the TRIPS Agreement include reducing distortions and impediments to international trade, promoting effective and adequate protection of IPRs, and ensuring that measures and procedures to enforce IPRs do not themselves become barriers to legitimate trade.

Developing countries were not keen on an agreement on intellectual property in the WTO whereas developed countries considered that higher cross-border IP protection—which could be effectively monitored through a multilateral agreement—would bring in greater rents for their pharmaceutical corporations.

Ever since then patents have been a subject of debate. Those in favour have been arguing that patents promote innovation and dissemination of innovation. Patenting is costly, and therefore promotes the protection of marketable technology only, they say. 

Another argument is that patents are obtained only in areas where the law permits them, and are therefore controlled by the State. The pharmaceutical industry depends to a large extent on costly research and development programs for the production of new inventions. Therefore, patent protection of pharmaceutical compositions is important to them, they argue. 

However, not all agree with such arguments. An opposing section has time and again pointed out that patents are prohibitively expensive for developing countries. According to them the owner of the patent may abuse their exclusive position on the market. 

They also note that patents only help to reward the rich and penalize the poor, as their main effect is to raise prices. When it comes to the Covid vaccines, they note that IP rights hinder the introduction of affordable vaccines and drugs in developing countries and deny people their right to health.

TRIPS and Covid-19

To combat Covid-19, the world needs an immediate and smooth supply of medicine and vaccines at reasonable prices. India is a World Trade Organization member along with being a signatory of the TRIPS Agreement. 

According to experts, if the proposal by India and South Africa for a TRIPS waiver is approved it could enable collaboration between stakeholders paving the way to equitable manufacturing and supply of Covid medicines and vaccines. 

The waiver would be valid only until WHO declares global herd immunity. If the member nations cannot reach a consensus on the waiver, it can be passed with a three-fourth majority.

The authorities who have announced that they are considering “suspending” patent rights have not given much detail on what this would entail. The scenario from which we must start is a scenario where there are companies that have invested many millions in achieving inventions (with many research teams, many lines of work that do not achieve results, etc.). 

The argument from vaccine producers and their home countries is that waiving patents alone wouldn’t solve much. It would, they say, be like handing out a recipe without the ingredients or instructions. 

Most of the costs involved in coming up with vaccines are incurred in research and development: the manufacturing bit tends to cost less. In the first place, countries should have adequate health infrastructure and manufacturing capabilities to make use of the waiver. 

However, experts note that while a waiver is no silver bullet to the problem at hand, it can be an enabler to achieve real solutions faster. While opposing nations and pharma companies point towards the high cost incurred by the companies towards the development of the vaccines, what also has to be taken into account is the large public funding they have availed for the research and development of the same.

Also see: The Other Side of the Covid Vaccine Race

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