Introduction:
In December 2019, a peculiar virus was discovered in a seafood market in Wuhan, China. Initially, it affected only three people with acute respiratory problems. However, given the contagious nature of the virus, it was rapidly transmitted to a major portion of China’s population, and eventually, it spread across 215 contemporary nations across the world. Many lives were lost as the treatment was yet unknown. Soon, the world was engulfed by a pandemic within roughly three months of the discovery of the virus.
The coronavirus disease caused by the COVID-19 virus affects the respiratory system of the patient. It is highly contagious and can spread from one person to another through respiratory droplets that are produced while talking, singing, and sneezing. The chain of transmission of the COVID-19 virus can be developed very rapidly and it is very hard to break. The only way to do so is to maintain social distancing among people and follow the protocol.
Following the norms of social distancing caused economic activities to take a back seat as online mode restricted interaction and not all activities could be conducted without physical interaction. A permanent solution was required- a vaccine to immunize the population was the need of the hour.
This caused all major pharmaceutical companies to be indulged in a race to develop vaccines to immunize the mass against COVID-19. However, not every country could be a part of this race. The development of vaccines requires superior quality of infrastructure and huge investment in development. Due to the lack of facilities, the under-developed countries were automatically excluded from the competition. The regional disparity in infrastructure and research and development threatened the equitable distribution of vaccines.
Considering the difficulty this disparity can put on low-income countries and the immediate need to inoculate a large population, India and South Africa proposed a patent waiver to ramp up the production of the Covid-19 vaccine in the World Trade Organisation (WTO). This proposal attracted controversy as it had a large number of people supporting it as well as opposing it.
In this article, we shall understand the need for patents, the argument for and against patent waiver before divulging into the question – health vs monopoly?
What are Patents and why are they important?
The World Intellectual Property Organization defines a Patent as “A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.” [1]
A patent is important because it can help safeguard your invention. It can protect any product, design, or process that meets certain specifications according to its originality, practicality, suitability, and utility. In most cases, a patent can protect an invention for up to 20 years. [2]
Acquiring patent rights over an invention entitles the patent holder to certain benefits. Patents can increase the profit earned. It raises the valuation of the company, obliterates the competition, and attracts investors.
Patents are an important part of intellectual property rights. They are meant to protect one’s creation.
In a nutshell, patents prevent competitors from reaping profit by simply copying the design of the patent holder.
Patent for Vaccine
Drugs can take decades of investment and research to develop. Newly developed drugs also have to undergo ample experimentation before they are approved for use by the general republic. Hence, drugs can easily be incredibly expensive to develop. Acquiring a patent for drugs can help the investor enjoy a competitive free market and acquire a monopoly over the drug for a few years. During this period, the patent owner is offered the scope of maximization of profit.
Patent waiver refers to the temporary removal of this protection of intellectual property rights so that the technology used for the medication is easily accessible to the needy.
Arguments for patent waiver of COVID-19 vaccine
India and South Africa were the countries who initially advocated for the temporary waiver of Patent for Covid-19 vaccine and other Covid related medication for the emergency purpose at the World Trade Organisation (WTO). In the WTO, Intellectual Property has been protected by the TRIPS agreement since 1995. The TRIPS agreement stands for the Trade-Related Aspect of Intellectual Property Rights.
Many countries and organizations backed this proposal. The United Nations held that patent waiver was essential to deal with the health crisis created by Covid-19. This proposal gathered momentum especially when the United States openly supported it. The reason for such support could be summarised as below-
Firstly, according to the reports of Our World in Data around 3 billion vaccines have been administered around the world, but the vast majority has been administered in the wealthier nations. Countries like Africa have been given less than 2% of the vaccine.
Access to vaccines cannot be limited to only wealthier nations. As the adage “no one is safe until everyone is safe” stands truer than ever during covid-19 times, vaccination must be open to all. Denying access to vaccines solely based on economic viability is a clear violation of human rights.
Secondly, a waiver of a patent does not compel all pharmaceutical companies and major economies to share their technology with other nations. As evident from the onset of discussion around the proposal, major pharma and countries like the UK, Canada and Germany have expressed their distaste towards the proposal citing various reasons including the loss of initiative to boost production.
However, this proposal does not compel the countries to share their technology and other intellectual property. “An IP waiver doesn’t automatically remove all intellectual property rights relating to vaccines, PPE, ventilators and anything else,” Duncan Matthews, director at Queen Mary Intellectual Property Research Institute in London said. “It gives the discretion to particular countries to do that”[3]
Relaxing the patent restrictions on the vaccine manufacturers gives space to the manufacturer who wants to collaborate for the development of vaccines, the opportunity to collaborate. This allows the inflow of research and development skills amidst countries.
Arguments against Patent waiver
Organizations including the World Bank and the European Union, and countries including Japan, the UK, Switzerland, Brazil, and Australia have opposed the initiative.
As major economies and pharmaceutical companies advocate against the patent waiver, it becomes important to look at the scenario from the perspective of the superpowers.
The major argument put forth by this lobby is the fact that mere patent removal will not solve the problem of the production of vaccines. The transfer of vaccines must be accompanied by the transfer of technology, infrastructure, and manpower which the less developed economies lack. The lack of technical know-how inherently puts the economies in a technical disadvantageous position. As an alternative, the EU has called on the US and the UK to increase the export of both vaccines and ingredients in finished products.
Secondly, the patent waiver is seen as a major deterrence to innovation and creativity for the companies. In the words of Angela Markel, I think that we need the creativity and innovation of the companies – and for that, we need patent protection,” she added.
Thirdly, an automatic patent waiver will not lead to an increase in the production of vaccines in the short or medium term. This is because to increase the capacity of the vaccine, one has to implement long-term investment into the economy. Also, the pharmaceutical companies argue that they are negotiating license deals on a case-by-case basis to protect intellectual property rights.
Conclusion
The question of health versus monopoly has been brought forth by the crisis created by covid-19. The importance of vaccines cannot be emphasized enough as they are the most effective preventive means that can help us fight the deadly virus. Human lives should be prioritized over profit. However, it is important to take note of the arguments that have been both forth by the opposition. While it is true that human lives always claim precedence, yet it is crucial to view the entire matter through the prism of rationality.
It is undeniable that the lower-income countries lack the infrastructure that the major economies have. Covid-19 has underlined the need to develop infrastructure projects and the need for strong research and development. This will enable the countries to become self-reliant. However, the development of vaccines will require long-term investment and poor economies might not be able to bear the expenditure single-handedly. Here, the major economies can invest to promote the welfare of those who need it the most.
For immediate relief, a hybrid way should be considered. The existing infrastructure should be fully utilized to develop vaccines using technology from developed countries. The deficit between the production and requirement should be imported. That equipment that cannot be produced should also be imported on an urgent basis.
The profit motive should take a back seat. However, running at loss is not sustainable either, especially because the research and experimentation is a costly process. To make the vaccine available for all, mere production should be procured.
Covid-19 is a global health crisis. To help the world out of this crisis, all countries must fight back in unison.
References:
[1] Patents-what are patents, World intellectual property rights (Oct 26, 2021, 6; 11 pm) https://www.wipo.int/patents/en/
[2] Widerman Malek, what are patents? , Widerman Malek Attorney. (Oct 26, 2021, 6:11 pm) https://www.legalteamusa.net/how-patents-work/amp
[3] Elizabeth Melimopolous, Explainer: What are patent waiver for COVID-19 vaccine, Al-Jazeera (Oct 26, 2021, 6:11 pm) https://www.aljazeera.com/news/2021/6/29/explainer-what-are-covid-vaccine-patent-waivers
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