In a world that has been ravaged by the outbreak of COVID-19 for over nine months, institutions across the globe are looking to win the race for inventing the long-awaited vaccine. This spurt of research and innovation, though, is accompanied by the desire to protect one’s intellectual property. However, with the unprecedented challenges posed by the current outbreak, the existing positions on the interaction of intellectual property rights with public health are being questioned. Since the establishment of the current international legal framework governing patents in 1995, the coronavirus pandemic has been unmatched in its impact, and has thus shed light on aspects of this framework that may need to be modified or reassessed to account for a public health emergency, particularly one of this scale.
Consequently, on October 2, in a letter addressed to the World Trade Organisation (WTO), India and South Africa expressed their concerns about specific provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which they argue obstruct the global fight against the COVID-19 outbreak. The joint submission said that patent laws have restricted access to several pharmaceutical products and medical equipment, including N-95 masks, and will continue to create such hurdles unless the institution formally waives certain obligations. They also expressed concern about the TRIPS provisions limiting the availability of a COVID-19 vaccine.
India and South Africa’s proposal is both timely and necessary, and the need to gather international support for it is urgent. The WTO and its members must recognise the threat caused by restricting access to research and medical equipment due to laws that protect patent rights. The international community has many lessons to learn from the struggles during the early stages of the COVID-19 pandemic, and the failure of countries to introduce emergency provisions to amend the over-protective patent laws expeditiously.
Several governments struggled to procure essential Personal Protective Equipment (PPE) and medical and pharmaceutical products, as companies refused to provide other manufacturers licenses to produce the equipment. For example, in the United States, which is currently the worst affected country, companies like 3M Co. refused to grant licenses for the production of N-95 masks. This created a severe shortage of masks and hampered the ability of healthcare professionals to protect themselves while handling COVID-19 patients.
Similarly, in Italy, a company was forced to reverse-engineer crucial valves for ventilators, as companies denied requests to license their patent, despite the consistently rising number of deaths. Similar struggles were seen in France and the Netherlands, too, with companies refusing to share research that was necessary for developing COVID-19 tests.
The difficulties faced by these governments highlight the importance of diluting the legal provisions to deal with the unprecedented public health emergency posed by the COVID-19 outbreak. Consequently, several countries have introduced laws to soften their existing patent laws and increase accessibility to pharmaceutical products and medical equipment.
Countries like Chile and Canada, for instance, implemented laws to expedite the process of granting compulsory licenses—which allows domestic governments to compel patent holders to grant licenses in order to improve the accessibility of patented goods or services—specifically for products needed to combat the pandemic. Others, like the US, have used executive powers to force companies and the military to produce PPE and ventilators.
However, the struggle is just beginning. With research facilities across the world working towards developing a vaccine to bring an end to this pandemic, the international community must prepare itself for a similar scuffle between governments, companies, and organisations after the vaccine is developed. Hence, there is a need for urgent action to avoid similar patent politics from restricting widespread and timely access to the vaccine to meet the global demand.
Apart from waiving off specific provisions of the TRIPS, governments must also promote the sharing of data and research on the COVID-19 vaccine. While the World Health Organisation (WHO) has already established such a platform—the COVID-19 Technology Access Pool (C-TAP)—most countries whose vaccine candidates are frontrunners, such as the United Kingdom (UK) and the US, are not a part of the initiative. Therefore, countries should be encouraged to join platforms like C-TAP for the greater good. Further, governments must also work towards providing incentives, such as research grants, to companies and organisations, to ensure that they are motivated to share their work with the public.
Further, any international response must give special attention to developing and underdeveloped countries. In their submission to the WTO, India and South Africa highlighted the “disproportionate impact” felt by governments on the lower end of the socio-economic spectrum due to the current legal framework on patents. The TRIPs agreement permits governments to compel companies to license their patents and allow the low-cost generic manufacture of the vaccine, thereby causing unnecessary delays in the governments’ ability to meet the domestic demand for the vaccine. However, countries that have limited political and economic resources will face significant obstacles while exercising their choice to grant compulsory licenses under these provisions, as the institutional challenges, like procedural inefficiencies, make the legal process a long and tedious one.
Moreover, with more prosperous and developed countries hoarding pharmaceutical products such as Remdesivir—a drug that has shown promising results in mild to moderate cases of COVID-19—a similar inward-looking response can be expected from these countries with the vaccine too. In fact, the US, Germany and France have already pre-ordered millions of doses of vaccines from several candidates.
At least during the earlier stages of distribution, developing and under-developed countries, whose economies have already been ravaged by the COVID-19 outbreak, will rely on donations and aid from other more developed countries to meet their demand for the vaccine. To ensure equitable distribution of the vaccine, the WHO has brought forth the COVAX scheme. However, even this has failed to secure support from several richer countries, like the US. Hence, to prevent a situation wherein the worst-affected developing nations fall victims to “vaccine nationalism” by wealthier countries, urgent international cooperation and collaboration are needed.
Also Read: Vaccine Nationalism and its Impact on The Global Fight Against COVID-19
Against this backdrop, India has an opportunity to emerge as a global leader in the fight to achieve a multilateral and transnational response to steer emergency changes to the international framework on patent law. To begin with, India is in a position to use its diplomatic channels with developed countries like the US, UK, Australia, the European Union and Japan, who are likely to be resistant to the proposal, to push forward its submission before the WTO. This is particularly important, as proposals in the organisation require unanimous acceptance by all members. In this regard, India must leverage its status as the “pharmacy of the developing world” in order to push its allies to accede to such a change.
Admittedly, watering down patent rights can provide scope for exploitation. However, with a unique threat like the COVID-19 pandemic, the measures, too, need to be unprecedented and extreme. However, without an expedited international response to the issue, we risk stretching out the pandemic and its consequent impact on the world’s economy far longer than necessary. Hence, the international community must put political differences and international politics aside, and countries must abandon their inward-looking policies and unify in the global fight against the virus before it is too late.