Akshara Ajit Kurup
Intern, International Law Initiative
With new strains of the COVID-19 virus found in countries like UK, South Africa and India etc, with the latter two facing a major crisis of overburdened healthcare systems and a huge rise in Covid cases due to inequitable access to treatment, the issue of a patent waiver on the vaccine production is a pressing one. This rests on the idea that vaccine nationalisation and equitable distribution of vaccine to countries would aid in tackling the second and third waves of the pandemic. India and South Africa reiterated a similar appeal to the WTO. The proposal, first tabled in October 2020, has found the backing of over 100 nations.
Intellectual property protection in the healthcare and pharmaceutical industry has always been under debate, often facing moralistic questioning public access to healthcare versus protection and fostering of innovation and the industry well-being, particularly Big Pharma.
But more important than the debate on whether the waiver shall be useful or counterproductive, it is the focus on the massive support for a patent waiver which highlights the institutional issue that unequally affects member nations. But a general waiver may not be the answer, especially given that the pandemic and its impact on the healthcare and generic pharmaceutical industry will definitely be long term, which means regulation is not an option, but a mandate. But a waiver of specific obligations or benefits such as allowing for compulsory licensing on a cross-border basis and not just by the domestic government within their jurisdiction, for a particular period of time, would massively relieve countries that do not have the institutional or production facilities, nor the time to come up to the quality of research and development capacity that is required to address the pandemic situation in their country.
But a major and valid opposition to this, is that the transfer of the knowledge with respect to both product and process, will result in heavy losses which cannot be sustained on a long-term basis.
What is required is a more balanced approach to patent law that resembles the original principle of intellectual property as a temporary and limited social contract that protects real innovation, rather than what IP has become today, a tool for expanding the reach of private property.
It is agreed that mere removal of TRIPS obligations on the member nations will not help the situation at all. Many opponents of the waiver have rightly pointed out that doing away with intellectual property protection and obligations that come with it will not address the lack of the production capabilities present in the particular country or the red tape-ism. But given the current situation across the globe, if the removal of procedural and technical obstacle will help in equitable production and access to the vaccination, drugs, production research and knowledge or any other necessary product, then that must outweigh the loss that may be caused to a few rich countries or Big pharma players in the market. This is in line with the demand for a New International Economic Order, where the conditions on developing and least developed countries that are mostly those who were colonised countries and have suffered subsequently in the system controlled by the erstwhile “colonisers”, must be taken into account. The fact that majority of the countries who are facing issues in national vaccination due to lack of vaccines or know-how regarding the same and/or are the ones facing the brunt of the impact of the second and third wave, fall in the category of the developing and least developed nations that demand a seat at the table and seek for this specific patent waiver, cannot be ignored.
Medicins Sans Frontier, India and South Africa proposal for WTO waiver from intellectual property protections for COVID-19-related medical technologies, Nov 18, 2020, https://msfaccess.org/sites/default/files/2020-11/COVID_Brief_WTO_WaiverProposal_ENG_v2_18Nov2020.pdf  Murphy Halliburton, India and the Patent Wars: Pharmaceuticals in the New Intellectual Property Regime, ILR Press, Cornell University Press, (2017), Pg. 13