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Taming the virus: Is a patent waiver on COVID vaccines the best option for the world?


Despite Joe Biden’s support for India’s and South Africa’s demand for a waiver of four different kinds of intellectual property (IP) related to Covid-19 treatments and vaccines, this demand is being sidelined by lobbies in developed economies. Even though the US president’s support is restricted to vaccines, waiver of IP, indeed, remains the best option. The second-best option is for the governments of developed economies that say they want to help vaccinate less fortunate populations of the world to buy out the IP of the vaccines and make them free for whoever has the competence to produce the vaccines.

The forthcoming G20 meeting on October 30-31 in Rome should focus attention on these steps, instead of quietly acquiescing to the EU offer of voluntary licensing. Voluntary licences are welcome when and where they materialise. But these depend on the goodwill of the volunteer pharma companies, and the subtext of conditionality that could accompany such voluntary arrangements.

India and other emerging market members of G20 must focus on the original IP waiver demand, and the next-best option of State funding of IP purchase, setting the knowhow free. China is unlikely to be keen on such a move, as its own vaccine diplomacy strategy is to dump its own vaccines on the developing world, notwithstanding their iffy efficacy. It is in the interest of the US and the EU to support either waiving or buying out the IP of high-quality vaccines to make them the mainstay of pandemic resistance, rather than leave the field open for China.

The World Trade Organisation’s (WTO) Trade-Related Intellectual Property Rights (TRIPS) agreement offers distorted incentives to produce innovations in areas of concern to rich markets. Most new drugs and other health-related innovations take place in rich economies-related diseases at the expense of poor-economies’ priorities such as AIDS and malaria.

Under pressure from poor and developing economies, the provisions of compulsory licensing (CL) to meet pandemic-like challenges were inserted in TRIPS. However, vested interests made its invocation very stringent. As per the original provisions, a country could authorise its domestic producers to produce patented drugs or vaccines in a health emergency.

Thus, first, it should have the domestic capacity to produce patented drugs. This was not a problem for India. But other developing countries that lacked a sophisticated pharmaceutical industry were vulnerable — until the August 30, 2003, decision of the TRIPS’ council that made import permissible from other countries under CL.

Least developed countries (LDCs) are exempted till 2033 from the requirement to implement pharma product patent provisions. Moreover, if they do not have domestic capacity and no generic drugs are available in the international market, they can request another country with the relevant capacity to produce that drug and export to it under CL.

The proposed user country would make adequate compensation to the patent holder. Determining what makes adequate compensation is problematic. Moreover, it is open for judicial review, and may entangle the concerned country in an expensive judicial battle.

These may be the main reasons why India and other developing countries are looking for patents and other IP for Covid vaccines to be waived. Moreover, the development of vaccine involves many patents on the ingredients that go into the final production of the vaccine. It will require many negotiations with each patent holder, which might spawn many legal battles.

In times of a global health emergency, governments should partner with domestic pharma companies to develop new drugs or vaccines, buy the patents, making reasonable compensation for the contribution of private sector, and make these patents available to pharma companies having the requisite capacity across the world, to produce enough to meet the world demand.

Governments in many countries collaborated with private players to develop vaccines. Now, they should take the subsequent steps needed to inoculate the world at the earliest. Rich and emerging economies should make these patents available free of cost. In countries where there is no capacity to produce these vaccines, these should be made available by rich and emerging economies for a nominal price covering the cost of production.

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