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Patent Waiver (Update)

Covid vaccines

As early as February 2020, a month before Covid-19 had even been declared a pandemic, and a full year before there were vaccines the World Health Organization proposed an “R&D blueprint” for ways in which pharmaceutical companies and international government agencies could share information and technology that would help to lessen the impact of the global health emergency that was clearly on its way. The WHO formed the Covid-19 Technology Access Pool (C-TAP), which invited all holders of technology-related knowledge to work together, so that “shared knowledge, intellectual property and data will leverage our collective efforts to advance scientific discovery, technology development and broad sharing of the benefits of scientific advancement and its applications based on the right to health.”

Note that: the right to health. Access to Covid vaccines, when they became available, was posited not as a privilege for the few, but as a basic human right for all.

Simply put, the WHO was asking pharmaceutical companies that would eventually develop a vaccine against Covid-19 to share their formulae for their vaccines with other companies around the world. The WHO wanted all nations to have equal access to medicines and technologies that would lessen the impact of the pandemic worldwide. They recognized that in order to stamp out Covid in any one country, it would have to be stamped out everywhere. That’s what “pandemic” means. And since developing, testing, and manufacturing a new vaccine requires an investment of many millions of dollars, it was obvious that pharmas in rich countries, aided by government grants and private investors, would develop vaccines much faster than companies in low- and middle-income countries (LMICs). Sharing the means and methods of making those vaccines would ensure that those rich nations would not keep the lion’s share of available vaccine doses for themselves, while citizens of LMICs suffered and died for lack of adequate medical attention.

Which is exactly what has happened.

A vaccine formula is intellectual property. Like a novel, or a new kind of fertilizer, the right to profit from intellectual property belongs to the person or corporation that produces it. And in 1994, each country that belonged to the World Trade Organization (WTO) had signed an Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which stated that each signatory nation would respected the intellectual property rights of every other member nation. C-TAP could not, and did not, require pharmaceutical companies in North America and Europe, when vaccines became available in early 2021, to bypass TRIPS and send their vaccine formulas to India or China or Africa or South America.

The WHO could simply ask the First World to put a human being’s right to health ahead of a global corporation’s right to make a profit. And the First World refused.

That’s where things stood when my book, Pandexicon, went to press in December 2022. On June 17 of that year, after much rancorous debate, the WTO adopted its “Ministerial Decision of the TRIPS Agreement,” which effectively enacted the Doha Declaration of 2001, which stated that in times of emergency, TRIPS could and should be waived in favour of the goal “to promote access to medicines for all.” The Ministerial Decision stated that any member nation, including LMIC countries, could authorize “the use of the patent required for the production and supply of COVID-19 vaccines without the consent of the rights holder.”

The waiver covered Covid vaccines only and was limited to five years, and was strongly opposed by pharmaceutical companies everywhere, and by the governments of the UK, the European Union, Japan, and South Korea, but surprisingly endorsed by the US, Russia and China. Canada, which was still negotiating with China to produce its own patented vaccine, Covifenz, waffled during the Ministerial Decision debate, stating that it didn’t see how a patent waiver without the consent of the rights holder would benefit poorer countries: “Canada is…interested in better understanding how a waiver would incentivize these requisite collaborative relationships,” Canada told the WTO TRIPS Council, “and, where full practice of the art is not possible without the participation of the licensor, we are interested in better understanding the safety, efficacy and regulatory implications of the production of vaccines independently from the licensor.”

Note that word “incentivize.” What objectors to the waiver were saying was that without the profit motive, pharmaceutical companies would have no incentive to develop new vaccines.

As a result, the waiver passed by the WTO in June was a toothless compromise, totally inadequate for addressing the huge disparity between rich and poor nations in terms of Covid vaccination rates. By November, as reported by Harvard Law’s publication Bill of Health, there were still huge gaps in vaccination rates worldwide: in LMICs, 23 percent of the population had been vaccinated, while in wealthier countries it was 82 percent.

The WTO waived patents, but the Ministerial Decision failed to include access to the necessary elements that would allow LMICs to manufacture the vaccines. The Decision provided no access to trade secrets, no sharing of know-how, infrastructure, equipment, or materials needed to make the drugs. Essentially, pharmaceutical companies could say, Okay, we’ll give you the formulae, but we’re not giving you the “trade secret” you need to interpret it, nor are we going to give you the equipment and technology you need to manufacture the vaccine – and oh, yeah, the materials you need to make the drug with are ours, too. This, said Harvard Law, has resulted in an “inexcusable delay in reaching a solution” to the imbalance, because of “historical biases, systemic discrimination, and inequality in the application of the TRIPS Agreement.”

When the next Covid variant hits, poor- and middle-income countries like India and most African nations will be no better equipped or prepared to deal with it than they were a year ago, and not much farther ahead than they had been three years ago. This is an appalling failure on our part to reach out to help our fellow human beings. It brings to mind John le Carré’s contention, expressed in his novel The Constant Gardener, that “pharmaceutical companies are engaged in the systematic corruption of the medical profession, country by country.”

1 Comment

  1. Merilyn Simonds

    What an opportunity thus pandemic has offered to the world to put people over profits, and, as you so clearly show, what a disappointing failure we have been.

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