The fig leaf of patent protection has to drop
The U.S.-supported patent waiver in the COVID fight has the potential to bring in much-needed global health equity
GS 3 : Intellectual Property Rights
Background
- The President of the United States, Joe Biden, decided to support the India-South Africa patent waiver proposal, seeking to combat and contain COVID-19.
- The proposal that was placed before the World Trade Organisation (WTO) had been facing resistance from several high income countries including the U.S. administration.
- A change in the American position supporting a temporary waiver could act as a catalyst for building consensus in favour of that proposal when it comes up for fresh consideration at the WTO in June.
- However, the path ahead is not clear. While France and Russia have declared support, Germany has voiced its opposition.
Predictable responses
- Response for the patent waiver proposal was divided among the nations of the world. It was developed countries like US, UK, Japan, EU, Switzerland and Norway who opposed it.
- While around sixty developing countries supported the proposal by voting in favor of it, but beacause WTO works on consensus rather than voting the agreement could not be reached.
- The pharmaceutical industry fiercely opposed it and vigorously lobbied many governments. Right-wing political groups in the high income countries sided with the industry.
- Microsoft co-founder and billionaire Bill Gates was strident in his opposition to patent waivers for vaccines.
- It appeared that patent rights would be doggedly defended even in the face of a devastating pandemic.
Hollow reasons
- It was argued that the capacity for producing vaccines of assured quality and safety was limited to some laboratories and that it would be hazardous to permit manufacturers in low and middle income countries to play with technologies they cannot handle.
- This smacks of hypocrisy when pharmaceutical manufacturers have no reservations about contracting industries in developing countries to manufacture their patent-protected vaccines for the global market.
- The low labour costs in developing countries are attractive thus confidence in the quality and the safety of their products is high, so long as patents and profits are protected.
- This amazing duplicity has been seen for years when multinational firms have subcontracted manufacture of patented products to industries with low production costs in developing countries.
- The counter argument given to patent waiver is offer a licence in developing countries to few manufacturers but retaining the patent rights. But the opaque terms of agreement and no assurance of equity make them redundant.
- It was stated to supply the vaccine to developing countries via “COVAX” facility. But this too is marred by the shortage of supply and discriminatory policies. For example some U.S. States have received more vaccines than the entire Africa has from COVAX.
- Thus trickle down approach of vaccines isn’t the solution in the current pandemic crisis.
- Another argument given by patent waiver critics is that other than those firms who are currently producing vaccines no capacity exists. But this is not all true, countries like Canda and South Korea have sufficient manufacturing capabilities.
- The World Health Organization’s mRNA vaccine technology transfer hub has already drawn interest from over 50 firms.
- India has set the example before the world in the field of pharmacy by moving from product patenting to process patenting between 1970 and 2005.
China line, safeguards
- Patent waivers are also dismissed as useless on the grounds that the time taken for their utilisation by new firms will be too long to help combat the present pandemic. The fact is many countries of the world are facing low vaccination rates and there can’t an end date to the pandemic.
- Efficacy and safety of their products can be assessed by credible regulatory agencies and the World Health Organization. Patent waivers will benefit by increasing access not just to vaccines but also to essential drugs and diagnostics.
- Another argument put forth by multinational pharmaceutical firms is that a breach in the patent barricade will allow China to steal their technologies, now and in the future.The truth is original genomic sequence was openly shared by China, which gave these firms a head start in developing vaccines.
- Much of the foundational science that built the path for vaccine production came from public-funded universities and research institutes.
- Most repetitive argument given by pharma companies and developed nations is that innovation and investment by industry need to be financially rewarded to incentivise them to develop new products.The answer to this is they will keep recieving the royalities and earn revenues despite issuance of the compulsory certificates.
- Pfizer’s vaccine generated $3.5 billion in revenue in the first quarter of 2021, while mostly reaching the arms of the world’s rich. It expects $15 billion sales this year. Moderna says it expects sales of $18.4 billion in 2021. The incentive to protect profits is very strong indeed.
Building on Biden’s gesture
- The World Trade Organization resolves debates by consensus and not by voting. The process may drag on, despite U.S. intervention.
- If US President succeeds in driving consensus to provide a global thrust to combat a global threat, he will match Franklin D. Roosevelt’s leadership in the Second World War. He does not have such an alliance in place now.
Conclusion:
- So, developing countries must take heart from his gesture and start issuing compulsory licences. The Doha declaration on TRIPS flexibilities permits their use in a public health emergency.
- National governments must be trusted to promote credible companies and not permit fly-by-night operators.
- High-income countries and multilateral agencies should provide financial and technical support to enable expansion of global production capacity. That will reflect both ennobling altruism and enlightened self-interest
