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Back in October 2020, representatives from India and South Africa tabled a proposal at the World Trade Organisation, asking it to suspend medical patent rights for the duration of the pandemic to ensure that along with rich countries even developing nations have proper access to vaccines and other crucial medical equipment and drugs.
In the absence of these proposed measures, the countries have argued that wealthier nations will benefit from new technologies while poorer states continue to be affected by the pandemic. The proposal states that patents are hindering access to affordable medical equipment and therefore by instituting a temporary ban, we would be able to allow multiple companies to start the manufacturing process sooner, instead of having the production controlled by a group of few large multinational companies that hold the patents for the products. Many low and middle-income countries have voiced support for this proposal, however, many developed countries including the UK, Canada, and Norway have completely rejected the motion saying that the existence of patents is necessary for encouraging innovation in the field of medical science.
Although the United States was initially opposed to the idea of a temporary vaccines patent waiver, on May 6th President Biden bowing to mounting pressure from Democratic lawmakers and more than 100 other countries threw his support behind waiving intellectual property rights for COVID-19 vaccines, angering many pharmaceutical companies who stated that the President was misguided on the issue. Following this, the European Union signaled its willingness to commence talks on the issue, however, Germany which is home to many large pharmaceutical companies including BioNTech has voiced strong opposition to the proposal.
Those opposed to the proposal have argued that proper and equal access can be achieved through voluntary licensing, technology transfer arrangements, and the WHO’s COVAX system. Furthermore, they also state that COVID-19 related medicines, therapeutics, and vaccines are complex biological products in which the main barriers are production facilities, infrastructure, and know-how and therefore waiving patent rights for vaccines is not the right approach as it doesn’t address the above problems.
In addition to this, they also articulate that the patent-waiving measure also does not solve the issue of supply chain constraints and bottlenecks which are also one of the main obstacles that vaccine manufacturing companies face while ramping up production capacity. They go further by saying that since this waiver leads to multiple companies starting vaccine production, it will cause more manufacturers to having to fight over the already congested supplies of raw materials, leading to the supply chain being severely disrupted.
However, opponents of the counter-proposal state that the COVAX system, which primarily runs on voluntary donations made by rich countries, is grossly inadequate for ensuring timely access to medical products. The COVAX system aims to procure over 2 billion doses of vaccines and share them equitably between rich and poor countries. However, according to data compiled by Duke University, the COVAX scheme has until now reserved only 700,000 vaccine doses for a combined population of over 1.7 billion people. This is a very minuscule amount compared to the nearly 6 billion doses that developed countries reserved for themselves through direct deals with pharmaceutical companies.
The COVAX facility is a constituent part of a global effort, the Access to COVID-19 Tools Accelerator (ACT-A), to supply not just vaccines, but also other medicines such as monoclonal antibodies, testing kits, and oxygen to poorer countries. The latter is an ambitious programme led by the World Health Organization and the Bill & Melinda Gates Foundation. However, the procurement targets set by this programme are not sufficient because of the 2 billion vaccine doses that the COVAX facility aims to deliver, fewer than 1 billion would go to Low and Middle-Income Countries. So, if the vaccine requires two doses, this amount will be enough for fewer than 500 million people. Similarly, ACT-A’s diagnostics arm aims to procure around 500 million tests which some experts say is only a fraction of what is needed to fight the pandemic. Therefore, ACT-A is, even if fully financed, at best is just a partial solution to the access problem. Moreover, because of a massive funding gap, even these targets are far from being reached. To date, donors have provided US$5 billion of ACT-A’s $43 billion required budget for Low and Middle-Income Countries over the next year.
In addition to this, proponents of the proposal argue that the voluntary transfer via company-led initiatives has delivered limited results. This is because AstraZeneca’s manufacturing agreements with Indian and Brazilian companies including the Serum Institute of India, which is the world’s largest vaccine manufacturer, lack transparency about costs, and Pfizer whose vaccine candidate has shown promising results, have shown no willingness towards licensing or technology transferring their patented products.
Furthermore, Médecins Sans Frontières (MSF) which has been advocating for a waiver on COVID-19 vaccine patents for several months, has argued that the waiver is justified on emergency grounds and is crucial for poorer countries that cannot afford to pay the high prices for vaccines and other treatments relating to the COVID-19 disease.
Considering the highly controversial and contested nature of the proposal, it is very difficult for all the parties involved to reach a consensus in the World Trade Organisation’s Trade-Related Aspects of Intellectual Property (TRIPS) Council where the matter is currently pending. It is theoretically possible to put the matter to a vote but members have never let it happen in the past, and therefore they are unlikely to do so now. However, with the recent and catastrophic surge of cases in India which – at the time of writing this article – has been recording over 300,000 new cases daily for the past two weeks, pressure is mounting on the UK and the EU governments to support the vaccine patent waiver. However, with the United States deciding to back the proposal, the struggle to get a temporary global patent waiver has gotten an important and much-needed boost.