The world is in desperate need for COVID-19 Vaccine to fight this global war against the covid-19 pandemic. It will take years for the limited companies to manufacture the demand to inoculate even the majority of the population worldwide.   But the million dollar question is why only few limited companies are manufacturing it? and why are all the companies that have the manufacturing facilities not manufacturing or not distributing the vaccine even when that concerns a matter of life?

This has something to do with a concept calledpatent protection’. 

We at LexpertEase, have delved into the details to help you understand what this patent protection is and how it works. 

What is a Patent?

A patent is a form of IP that grants the holder the exclusive legal right to regulate the use of the invention. This includes, prohibiting anyone from, among other things, creating, using, or selling the invention without permission. This right is considered extremely important and is viewed as an encouragement for innovation through investment in research and development. For example, in the current case some large pharmaceutical companies have invested millions, if not billion, in developing the COVID-19 vaccines and each of them have developed a unique method/process through extensive research and development, and various phases of testing and approval. 

What is Patent protection? 

Patent protection is  legal protection that enables the inventor to have rights over their invention i.e. in the current case: the vaccine so that they can recover their investment on the research & development, and also enjoy the economic and moral gains. Patent Protection during the pandemic has raised following concerns:

  1. Should patent protection be an absolute right?
  2. If yes, is it justified to grant absolute rights when people are dying at an alarming rate that in some countries like India, it’s difficult to find a crematory .
  3. Is it humane to assert patent protection and limit the manufacturing to only a few companies ?
  4. What does the international standard say? 

This is the ethical, moral and the legal dilemma the countries across the world are facing. States including India, South Africa and also USA are urging for waiver in patent protection in COVID-19 vaccine while influential people like Bill Gates, one of the richest people in the world, are advocating against the total waiver of patent protection. 

Why is patent protection being discussed amid Pandemic?

For now, the patent protection has become a major obstacle to mass vaccination drives esp. in middle and low income countries. Last fall, a group of developing countries led by India and South Africa proposed to the World Trade Organization (WTO) that vaccine patents and other COVID-related products be waived. This idea should be seriously considered because a temporary IP waiver might help accelerate the end of the pandemic. Unfortunately, pharmaceutical firms and Western nations, including the EU, the United Kingdom, and – at the time – the United States, were quick to criticize the ideas. But in a shock move, the US government has declared that it supports waiving patent rights for COVID-19 vaccines, a step that will increase supply and enable people all over the world to get the vaccine.

A small number of countries including Australia, Britain, Canada, some of the members of the European Union, Japan, Norway, Singapore continue to oppose a waiver that would enable access to COVID-19 tools during the pandemic, ahead of WTO talks on patents on the tools. If the waiver were approved, countries could manufacture COVID-19 vaccines and drugs on a larger scale and at lower prices.

Why is Patent waiver so important for now? 

With highly infectious new variants of the coronavirus spreading across many low- and middle-income countries, it’s vital to make sure any current and future medical tools are available in adequate quantities and on time, particularly for frontline health workers in developing countries. The World Health Organization’s Chief Scientist Soumya Swaminathan has said that India’s ban on the export of coronavirus vaccines had a severe impact on 91 countries. If increasing the number of global suppliers of medical tools is not prioritized, people in these countries will remain in a disproportionately disadvantageous position for access. The proposed IP waiver could provide a more expedited and automatic policy option for governments at the international level to facilitate increased access, instead of only relying on voluntary measures by the pharmaceutical industry.

Witnessing the current scenario and the governments battling for access to some diagnostics and protective equipment early in the pandemic, it was clear that least developed countries like Nepal and many others would be at the backfoot when it came to accessing scarce medical solutions. Rather than creating a major new loophole in the IP system by waiving patents, it is the idea urged by countries to expand access to vaccine technologies under the current WTO agreement known as Trips.

How can this waiver contribute to the fight against Pandemic?

Voluntary waivers or compulsory licensing!

To combat the crisis, one of the solutions being considered at the policy level and in the government is to use the compulsory license to shore up vaccine production by incorporating more and more firms. Patent owners can prefer compulsory licensing because they will still be entitled to royalties.

Compulsory licensing does help developing nations and LDCs! 

Compulsory licenses are mainly intended to enable domestic production; although it is possible for a country to receive a compulsory license for export production in another country, this system has proven difficult to implement in practice. This, in fact, affects developing countries. The major issue here would be whether or not to waive the Patent right regarding the COVID-19 vaccines. A compulsory licensing system exists under Trips, also known as the Agreement on Trade-Related Aspects of Intellectual Property Rights, which requires a government to license a patented invention to a third party without the patent holder’s permission. Negotiations with rights holders can already be bypassed under the law in the event of a national emergency, according to the rules. 

 What matters more: Life or Right?

There has been much discussion regarding whether COVID-19 vaccine patents should be waived to allow low-income countries to manufacture their own doses. 

The main question here would be what matters more in this pandemic; Right to life or the Intellectual Property Right? When the whole world is fighting against the deadly Coronavirus so as to save human lives another world is debating regarding the issue in the waiver of Patent right. Discussions at WTO are notoriously slow, and reaching an agreement, particularly over the scope and duration of a waiver, might take months. Though a TRIPS waiver might be granted by a three-quarters vote of WTO members, it is unlikely that members would deviate from precedent.

And for now, it is not just the question of how significant the waiver idea could be but time to ponder on giving COVID-19 vaccines a patent reprieve to save humanity from this pandemic.   

Please let us know what you think? Feel free to share.


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