After months of stalling debate, World Trade Organization member states appear to have finally reached a consensus in the stalemate negotiations for a COVID-19 intellectual property waiver that is a watered-down version of the one proposed by India and South Africa 18 months ago.
The original waiver called for the temporary suspension of all intellectual property rights — including, patents, copyrights, trademarks, and trade secrets — that are necessary to reproduce vaccines, diagnostic tests, and therapies for COVID-19. International organizations including Oxfam and Doctors Without Borders supported the waiver in its original form to increase access to medicine and prevent a new variant from developing in areas of low immunity.
"The waiver proposal offers all governments opportunities to take action for better collaboration in development, production and supply of COVID medical tools without being restricted by private industry's interests and actions, and crucially would give governments all available tools to ensure global access," said Dr Christos Christou, International President of Doctors Without Borders.
Pharmaceutical companies and many developed nations initially scoffed at India and South Africa's proposal, while talking heads argued that any suspension of IP rights would do nothing to close the vaccine inequality gap between rich and poor countries. Meanwhile, deaths from the virus soared.
Now, the compromise agreement released this week shares little in common with the original. The current proposal completely ignores Covid tests and therapies that help keep sick people from dying of the disease, and only applies to developing countries that produce less than 10% of world exports. This means that companies like Biolyse in Canada, which has been trying to obtain a licence from Johnson & Johnson to produce vaccines for export to Bolivia, will be excluded from the provisions of the IP waiver.
Under the current proposal, companies in eligible countries will also have to jump through more legal hoops to manufacture vaccines. These companies will have to declare all patents covered by the authorization, which is a step not currently required by the TRIPS Agreement governing intellectual property. Companies will also have to notify the World Trade Organization (WTO) of use of the waiver, which is not normally a requirement under most compulsory licensing agreements.
Crucially, the proposed waiver says nothing about obligatory trade secret tech transfers. One of Big Pharma's loudest counter arguments is their claim that an IP waiver will do nothing to help gets jabs in arms, because even if patents are waived, generics companies won't know how to make the vaccines. This is a valid argument, but it's an ironic one for the industry to make, considering it is completely within the companies' powers to make the tech transfers. It is the equivalent of a friend standing next to you in the kitchen mocking you for not knowing the correct way to make their secret brownie recipe, while refusing to show you how to fold in the egg whites.
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The benefit of a patent waiver combined with trade secret tech transfer is that it would enable developing countries the capacity to make vaccines on their own. Making vaccines on their own is important because it means that lower- and middle-income countries would not have to wait for leftover vaccines from rich ones, and they could control pricing.
One of the reasons rich countries got doses first was because of the sort of vaccine nationalism that led nations like the UK and the US to prioritise giving jabs manufactured in their countries to their own citizens before considering exporting to the rest of the world. It has been well-documented that in the early days of vaccination, doses were greedily bought up by developed countries in pre-purchasing agreements, and many of these countries pre-purchased more doses than there were arms to put them in. Canada pre-bought enough doses to give each citizen four vaccines. In December of last year, more booster shots had been administered in rich nations than all the doses in poor ones.
The pharma companies have never wanted to surrender control of the Covid vaccine and have already spoken out against the current provisional agreement for weakening patent protections. "Biopharmaceutical companies reaffirm their position that weakening patents now when it is widely acknowledged that there are no longer supply constraints of COVID-19 vaccines, sends the wrong signal," IFPMA director general Thomas Cueni said.
The "supply constraint" argument is an interesting one to use, because even when there were huge supply constraints, the pharma industry was adamantly against a patent waiver of any kind. A good question for Mr. Cueni would be to ask under what conditions he thinks a waiver would be appropriate. Mounting deaths, bullying over pricing, and complete dependency on Western companies to deliver vaccines don't seem to be good enough arguments for suspending patents during a global health emergency.
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When Mr. Cueni and other lobbyists warn that a patent waiver sends the "wrong signal" to the industry, what they are insinuating is a false choice between protecting innovation and expanding medical access. The old line goes that without the patent-protected monopolies, drug companies will be reluctant to invest in medical research to bring new drugs to market because there will be no guarantee for a return on investment. This argument casually ignores the $18 billion in free money the US government dished out in Operation Warp Speed for vaccine development. Moderna was 100% funded by US taxpayers (excluding the $1 million donated by Dolly Parton) and Johnson & Johnson received $1 billion for manufacturing 100 million doses for American taxpayers. The AstraZeneca vaccine was developed at Oxford University in the UK with 97% public funding. And even though Pfizer likes to brag it never took public money, its partner company BioNTech – which discovered the vaccine – received half a billion dollars from the German government.
At the heart of the argument over a patent waiver is the sacrosanct Western belief in the right to private property. Lobbyists for the pharma industry will say that any suspension of IP is theft because the knowledge of how to make the vaccines is private property that belongs uniquely to the drug companies. Concerns about supply constraints and innovation are strawman arguments that distract from the fundamental question of when does the right to health supersede the right to private property.
One argument I heard repeatedly from the folks working for pharma companies is that if patents are waived for Covid, what would stop the WTO from doing it for all drugs? This black and white thinking is both lazy and dangerous. In a globe-spanning public health emergency that affects literally everyone on Earth, shouldn't the need to vaccinate the world and prevent a new variant supersede the importance of IP rights? The original waiver proposal would have still allowed pharma companies to make a huge profit while also giving countries in the Global South the capacity to make vaccines without relying on the mercy of rich countries for handouts.
And these vaccines have indeed earned the pharma companies enormous profits. Last month Moderna announced an $18 billion yearly revenue, which is dwarfed by Pfizer's spectacular $37 billion. Not only have vaccines already netted vast sums for pharmaceutical giants, but with booster shots now looking more like an annual if not biannual part of life, these companies can expect huge profits into the distant future.
While it is not surprising that the pharma industry is against the current proposal, a compromise of any sort could work in the industry's favor. For one, it would end all discussion about IP and access to vaccines. And second, the next time there is a global health emergency, the industry can point to the toothless patent waiver as a sufficient compromise to get medicines to poor countries. And if the waiver in its current form is passed, it will guarantee that countries in the Global South will remain mostly dependent on rich ones for vaccines for years to come.
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