A waiver on patents and other intellectual property-related rights to Covid-19 drugs, vaccines, diagnostics and other technologies — lasting the duration of the pandemic — has been delayed by at least nine developed countries.
The waiver, proposed at a World Trade Organisation meeting on November 20, will suspend various provisions of the body’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement to combat the Covid-19 pandemic.
The waiver was sponsored by Kenya, India and South Africa and supported by 99 countries. The countries that oppose it include the US, the UK, Japan, Canada, Brazil, Australia, Norway, Switzerland and the European Union.
The intellectual property waiver would allow all countries to choose to neither grant nor enforce patents and other IPs related to Covid-19 drugs, vaccines, diagnostics and other technologies, until global herd immunity is achieved.
Currently, developing and poor countries do not have a way of accessing affordable new therapeutics and vaccines for Covid-19.
In their joint proposal, South Africa, India, Kenya, and Eswatini and now joined by Mozambique and Pakistan, called for a General Council decision to suspend the implementation of TRIPS provisions on copyrights, industrial designs, patents, and protection of undisclosed information in relation “to prevention, containment or treatment of Covid-19” for a temporary period.
While the US argued that pharmaceutical companies take enormous risks and need to be supported through strong IPR protection, Japan said the proponents of the waiver did not explain the basis of their proposal and why the current IP framework is not working, noting that companies and researchers are working to ensure access to effective medical products.
Amb. Johnson Weru, Kenya’s Principal Secretary State Department for Trade and Enterprise Development, said: “We gave our guidance on the possible access for Covid-19 vaccines and the impact they will have on our people if the drugs are made freely available.”
“Cases involving potential intellectual property infringements emerged early on in the pandemic revealing the complex legal implications of producing copies of life-saving medical products or parts thereof as well as impact on access,” said Kenya, which cited the example of the Gilead patent for Remdesivir, saying that Gilead has blocked access to generic alternatives until 2031.
Although the World Health Organisation has removed the drug from the list of those used in Covid-19 treatment, Kenya permits its use.
South Africa said many of the monoclonal antibody candidate therapeutics such as tocilizumab, bevacizumab, and even the Regeneron’s monoclonal antibody treatment, which has just been granted licence for emergency use authorisation; pose huge problems due to the disparity in access unless concrete steps are taken to address intellectual property barriers.
Kenya also argued that the countries proposing the waiver shared digital sequence information and relevant public health information to enable researchers to track the evolution of coronavirus and support the research and development and wondered why countries that host these projects would now oppose a waiver.
“The current monopoly-based model of research and development puts the fruits of a collective effort into a single company, allowing it to dominate the market, dictate supply and charge high prices with governments and taxpayers once again footing the costs of the medical product,” Kenya said.
“The co-sponsors do not believe that such an outcome is in the interest of a solidarity-based collaborative approach to address Covid-19.”
“The TRIPS flexibilities do allow limited policy space for public health; they were never designed to address a health crisis of this magnitude,” said India.
“Countries need to use every tool available to make sure that Covid-19 medical products are accessible and affordable for everyone who needs them,” said Sidney Wong, executive co-director of MSF’s Access Campaign.
“All Covid-19 health tools and technologies should be true global public goods, free from the barriers that patents and other intellectual property impose. We’re calling on all governments to urgently support this groundbreaking proposal that puts human lives over corporate profits at this critical moment for global health,” said MSF.
Citing Pfizer and Moderna vaccines, the EU said that “these results show that the intellectual property system as a framework that provides incentives and the foundation for stakeholders to invest and innovate has delivered.”
The chair of the TRIPS Council, Xolelwa Mlumbi-Peter from South Africa announced a December 10 formal TRIPS Council meeting to adopt a report on the matter, and which will be submitted to the next General Council meeting, scheduled for December 16-17.