Avoiding patents for Covid-19 vaccines

IN PERSPECTIVE

Extreme adverse events and situations bring together victims of the situation. This is what exactly has happened as both India and South Africa have come together to overcome the huge global problem of coronavirus (Covid-19).

While the disease has not spared any country in the world, it is well known that the developing and least developed countries (LDC) will indeed have a tough time to overcome the crisis. On March 11, 2020, the World Health Organization (WHO) declared the disease to be a pandemic, after having announced a related public health emergency of international concern (PHEIC) on January 30, 2020.

The World Trade Organization (WTO) has cautioned that the “Pandemic represents an unprecedented disruption to the global economy and world trade, as production and consumption are scaled back across the globe”. We have witnessed a breakdown in global supply chains coupled with growing supply-demand gaps.

While vaccines for Covid-19 are an important tool for combating global public health problem, it also includes toolkits that are useful for diagnosis and several other appliances and not to forget the drug itself that may cure in some way or treat the disease itself. There are intense efforts by research scientists and medical laboratories all over the world that are engaged in to find some solution to this huge and complex Covid-19.

As and when these discoveries are made, they are supposed to meet the needs of the community. This is the real challenge because as discoveries are made by the big drug companies which are mostly situated in the USA and Europe, they may want to create monopoly by patenting the discoveries. And if the patents are granted, then the discovered products will be made available to a few rich persons in rich, developed countries only and thus depriving the vast majority of people its benefits.

As companies are helping the governments in the global fight against Covid–19, there are disturbing instances wherein the same companies are also exploring as to how they can make huge profits by creating monopolies by using patents.

For example, there are hundreds of patents on things related to N95 mask, which is a very useful tool for frontline healthcare workers. The owners of this patents are the US government, 3M Co (as American multinational company with operations in around 70 countries all over the world), paper and health-related companies and in addition, a few universities. In another unrelated case, early this year, Labrador Diagnostic company filed a patent infringement suit against bioMerieux SA – a French company developing tests to detect Covid-19.

Huge cost

Just imagine a situation wherein there is some discovery that will detect, treat or cure a condition but the vast majority cannot access it because of its huge cost as it is patented. Such glaring examples are indeed becoming common. Patent wars have been ravaged in nearly every industry, yet there are questions whether litigators will take a break as the Covid-19 ravages the world.

It is to address this precise situation which may not be far off, that both India and Africa have come together with a common appeal to the TRIPS Council (Trade Related Aspects of Intellectual Property Rights), which falls under the WTO, to find tangible solution to this. India and South Africa, through the draft decision text, sought a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of the pandemic.

This intervention is most appropriate and timely. This ambitious proposal, submitted on October 2, 2020, if accepted by WTO membership, would facilitate technology transfer for effective Covid-related vaccines, therapeutics or diagnostic tests as the joint submission covers patents, copyright, industrial designs and undisclosed information including know-how and trade secrets. Thus, the draft by India and Africa goes much beyond patents as it also heralds solidarity among the developing countries.

The text of the submission urges that because of the exceptional circumstances that exist globally, the Council for TRIPS recommends to the General Council, a waiver from the implementation, application and enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement which are in relation to prevention, containment or treatment of Covid-19, is given effect to. The request waiver would apply to all WTO members. The waiver should continue until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity. Hence, it proposes an initial duration of certain period of years from the date of the adoption of the waiver.

The next TRIPS Council meeting is scheduled to be held on October 15, 2020 and its member countries are from Canada, the European Union, Japan, Switzerland, the United Kingdom, and the United States of America. Just note that most of these countries possess the drug manfacturing companies that seek patents on new innovations.

Hence, it will be intriguing to watch the outcome of this meeting. Will the TRIPS Council members think globally or succumb to the greed of the drug companies from their own countries?

(The writer is President, Drug Action Forum, Karnataka)