The Fig Leaf Of Patent Protection Has To Drop

Context: The recent U.S.-support to the patent waiver in the COVID fight has the potential to bring in much-needed global health equity.

Background

• Recently, the India-South Africa proposal to WTO sought a waiver of patent protection for technologies needed to combat and contain COVID-19.
• In opposition of the move:
  • Initially, resistance came from the U.S., U.K., the European Union, Switzerland, Australia and Japan.
  • Other opposers include the pharmaceutical industry, opposition from right-wing political groups, concerns raised by Microsoft co-founder and billionaire Bill Gates etc.
• It must be noted that The World Trade Organization resolves debates by consensus and not by voting.

Arguments against waiver of patent protection

• Quality concerns: Hazardous to permit manufacturers in low- and middle-income countries to play with technologies they cannot handle.
• Alternative recommendations:
  • Allowing for licensing instead of patent right: It is argued by the opposers to offer to license manufacturers in developing countries while retaining patent rights.
  • Focus on supply: Developing countries could be supplied vaccines through the COVAX facility, set up by several international agencies and donors.
• Capacity concerns: No evidence of existing extra capacity exists for producing vaccines outside of firms.
• Time span concern: Time taken for their utilisation by new firms will be too long.
• Concerns of technology stealing: A breach in the patent will allow China to steal their technologies.
• Rewarding innovation argument: Innovation and investment by industry need to be financially rewarded to incentivise them to develop new products.

Counter-arguments supporting waiver of patent protection

• Safe to develop in developing nations: The same industry in developing countries are trusted to produce vaccines when patents are licensed (because of low labour costs).
• Limitations with licensing: The terms of those agreements are opaque and offer no assurance of equity in access to the products at affordable prices.
• Issues with the supply chain: COVAX facility is restrictive and based on flawed trickle-down theory in global vaccine supply. E.g. Some U.S. States received more vaccines than entire Africa has from COVAX.
• Countering capacity concerns: Manufacturers from many countries (Including Canada and S Korea) expressed readiness and sought opportunities to produce approved vaccines.
  • India built up capacity and gained reputation as respected global pharmacy by moving from product patenting to process patenting between 1970 and 2005.
• Technology transfer will speed up vaccine development: Since patent waivers will benefit by increasing access not just to vaccines but also to essential drugs and diagnostics.
• Countering concerns regarding stealing of technology:
  • Original genomic sequence openly shared by China, which gave firms a head start in developing vaccines.
  • Much of the foundational science that built path for vaccine production came from public-funded universities and research institutes.
• Innovation is still rewarded: Even if compulsory licences are issued bypassing patent restrictions, royalties are paid to the original innovators and patent holders.
  • E.g. Pfizer’s vaccine generated $3.5 billion in revenue in the first quarter of 2021

Way forward

• Developing countries should issues compulsory licensing: The Doha declaration on TRIPS flexibilities permits their use in a public health emergency.
• Address need for financial and technical support: High-income countries and multilateral agencies should provide financial and technical support to enable expansion of global production capacity.