Context

Despite the solidarity shown by WIPO and WHO on prioritizing health before patent, researchers and governments face many difficult ethical decisions as they fund and develop treatments and vaccines for COVID-19.

Background

• The world is under the grip of global pandemic which has disrupted economy, caused widespread human causalities and collateral damage like migrant crisis of 2020
• Now as the vaccine has arrived by various drug manufacturers their production capacity does not meet the current demand of vaccine
• Hence there is strong argument to allow those patented vaccines to be manufactured by other pharma companies and water down the privilege of patent.

Analysis

What is patent?

• A patent is a type of intellectual property right and a key driver of value for biotech companies.
• Biotech companies use medical patents to protect their intellectual property rights to items such as drugs.
• A patented drug is protected against generic competition for a specified number of years, which lets the company that developed it earn high profits that help compensate for the high research and development costs to bring the drug to market, but can also make the drug unaffordable for low-income patients.

Why vaccines should be patented?

• The organizations creating treatments and vaccines for COVID-19 will have invested substantial amounts of time and money into their inventions.
• Protecting this investment, in order to encourage innovation, is exactly why patents exist.
• In addition, IP rights such as patents can also facilitate control over vaccine production and distribution, for instance by way of licensing.
• This control can help to ensure vaccine quality and safety
• Where the same vaccines are used in the developed countries and the developing ones, a market containing both rich and poor parts exists, and the developing countries can perhaps take advantage of the R&D costs being largely carried by the developed countries

Mechanisms that have been used to facilitate access to patented vaccines

• Tiered pricing – The different classes of buyers are charged different prices for the same product.
• In the context of vaccines, low-income countries are charged a reduced price compared to the open market rate through bulk procurement systems
• Bulk purchasing – this is also a mechanism for facilitating access to vaccines due to the importance of vaccine production scale issues and the need to predict demand.
• Procurement processes of the sort that were so successful in reducing the price of the Hepatitis B vaccine may face difficulty as global vaccine patent monopolies tend to increase the likelihood of encountering single suppliers.
• Voluntary licensing – voluntary licensing may take a number of different forms starting from a ‘bare’ patent licence, through permitting the licensee to carry out a certain stage of the vaccine production process, to a full technology transfer to put the licensee in the same position as the patent owner.
• Business model considerations will apply and as noted above, it cannot be expected that voluntary licensing will necessarily result in the same reductions in price that would appear in a truly competitive situation.
• Compulsory licensing –a ‘compulsory’ licence can be granted where for example the patent holder has abused their monopoly or where it is otherwise in the public interest.
• Whether or not the necessary know-how is possessed by a potential compulsory licensee will impact the effectiveness of compulsory licensing

Why we should consider a patent-waiver for production of COVID vaccine?

• Many drugs are discovered by the joint efforts of many companies to combat COVID-19 using new and repurposed technologies.
• To speed innovation, many pharmaceutical companies are partnering with each other, the public sector, and other third parties.
• These collaborations begin to break down the barriers these highly competitive companies build for intellectual property protection under normal circumstances. 
• Contrary to a popular perception, the real philosophy to grant a patent is about gaining ‘control’ over the product first; rather than just making profits by creating monopoly.
• Many people risk their life in clinical trials of any drug and if that section of society is deprived of its availability, then it will further discourage volunteers showing up for trials hampering future development of vaccines
• Many drug manufacturers based in developing countries argue that the compliance cost related to patents increases transaction costs and adds to their development timelines of the company
• Patents on vaccines and on essential technologies for vaccine development are not the only factors influencing vaccines Research and Development. Other factors are regulatory structure, investment, human capital, logistics etc.

Conclusion

Desperate times call for desperate measures, and COVID pandemic is one of such. Health and safety has to come before patent rights in all emergency situations including the COVID-19 pandemic,  Hence the world should work in solidarity towards free access or affordable licensing for certain coronavirus-related innovations.