Written by: Stephanie Moser
The global pandemic, Covid-19, has created a hotbed for discussion about Intellectual Property (“IP”) and patent protection in relation to vaccines, medical supplies, and medications.[1] With the emergence of the Delta Variantand the COVID health crisis still raging around the world, the call to eliminate IP and patent protection of the vaccine has become louder and more prevalent.[2] What could that mean for the pharmaceutical community and the world at large? Will it really help the world health crisis, or will it be a symbolic move made by wealthy countries to improve their status?[3]
Countries including India and South Africa sponsored a proposal to the World Trade Organization to suspend all IP protections on the COVID vaccine.[4] The proposal outlines the need for freedom of information, how that freedom would help resolve the pandemic, and highlights how critical this information is in relation to the pandemic.[5] The proposal has recently gained support from countries producing the vaccine such as the United States.[6] Without restrictions, any country and any facility will be able to produce the vaccine, which would ultimately lead to a higher number of vaccinated people in “low-income nations.”[7] Initially, large pharmaceutical producing nations and individuals with stakes in the pharmaceutical companies opposed this idea.[8] However, under the Biden administration, the United States changed their tune and supported this proposal.[9] In contrast, individuals such as Bill Gates have stayed strong in their support of tight IP restrictions in the biotech space.[10] It will be interesting to see how this clash pans out as the future unfolds. Disappointingly, experts say that even if the proposal is passed(which would not occur until at least 2022) there would still be a disparity between nations in regard to vaccine production and administration.[11] This is because even with restrictions lifted, low-income countries will not be able to build facilities, train staff, or ramp up production for the vaccines fast enough to meet demand.[12] Additionally, knowledge transfers could create more problems if the demand for raw materials used for vaccines increases.[13] Both of these factors contribute to the fact that just lifting the IP and patent restrictions will not contribute to reducing the vaccine disparity between nations.
So why lift the restrictions if they will not help the world get out of the pandemic in the short term? Prashat Yadav (a supply chain expert), Lawrence Gostin (director of the O’Neill Institute for National and Global Health Law at Georgetown Law) and other experts believe it may all be for show, or to maintain face on the world stage during a pandemic.[14] Moderna vowed not to enforce any patent protection on their COVID vaccine, but it is unclear if any countries took advantage of this release of information.[15] Other activists believe that lifting the legal barriers from vaccine information will increase third party involvement, leading to increased vaccine production.[16] Currently, it does not appear to be a legitimate solution to lift legal restrictions from patented vaccine information. It will be interesting to see how this plays out on the world stage, and if US-based companies follow the Biden administration’s request for a free exchange of patented vaccine information.
[1]Damien Garde, Helen Branswell, & Matthew Herper, Waiver of Patent Rights on Coivd-19 Vaccines, in near term, may be More Symbolic than Substantive, Stat (May 6, 2021) https://www.statnews.com/2021/05/06/waiver-of-patent-rights-on-covid-19-vaccines-in-near-term-may-be-more-symbolic-than-substantive/ [https://perma.cc/6G6B-RQCM].
[2] Id.
[3] Id.
[4]Michelle McMurry-Heath, Waiving Intellectual Property Rights Would Compromise Global Vaccination Efforts, Stat (Aug. 6, 2021) https://www.statnews.com/2021/08/18/waiving-intellectual-property-rights-compromise-global-vaccination-efforts/ [https://perma.cc/5JJX-G9GP].
[5] Council for Trade-Related Aspects of Intellectual Property Rights, Waiver from Certain Provisions of the TRIPS Agreement for the Prevention, Containment, and Treatment of Covid-19, WTO Doc. IP/C/W/669 (Oct. 2, 2020).
[6] Id.
[7] Id.
[8] Mohit Mookim, The World Loses Under Bill Gates’ Vaccine Colonialism, Wired (May 19, 2021) https://www.wired.com/story/opinion-the-world-loses-under-bill-gates-vaccine-colonialism/ [https://perma.cc/2AYP-W9Q4].
[9] Id.
[10] Id.
[11] Garde et. al, supra note 1.
[12] Id.
[13] Id.
[14] Garde et. al, supra note 1.
[15] Id.
[16] Id.
