Intellectual Property Rights in India

How AIDS fight offers a COVID vaccine patent pathway

Note4Students

From UPSC perspective, the following things are important :

Prelims level : TRIPS

Mains level : Paper 3- Ensuring affordability and availability of Covid-19 vaccines

The possibilities of new strain of Covid-19 emerging from any region of the world could derail the global recovery. To prevent that from happening vaccines need to be made available and affordable to all. This article discusses the ways to ensure that.

Ensuring affordability and availability of Covid vaccines

  • To achieve global herd immunity and prevent new strains of COVID-19 from emerging, vaccines need to be affordable and available in massive quantities throughout the globe.
  • Following three are the ways to ensure vaccine availability and affordability.
  • 1) Voluntary linceses: This can happen through patent owners voluntarily licensing their products to other companies, especially Indian producers who are experienced at mass-producing low-cost medications.
  • 2) Compulsory licenses: This can also be done by temporarily suspending patent rights for COVID vaccines.
  • 3) COVAX option: Some favour ensuring access to COVID-19 vaccines through the COVAX programme.

Options to ensure vaccine availability and affordability

1) Voluntary licencing: Lessons from fight against AIDS

  • Due to anti-TRIPS activism from low-income countries and low profits from low-income markets some manufacturers placed licensing agreements to produce AIDS drugs for which they owned patent rights in the UN-affiliated Medicines Patent Pool.
  • Several India-based companies then used these voluntary licences to manufacture these drugs on a massive scale and sold them at prices they determined.
  • This effort brought down the price of key AIDS medications in these countries.
  • The United Nations’ Medicines Patent Pool and the World Health Organization’s COVID-19 Technology Access Pool are important tools in an effort to promote voluntary licensing for COVID products.
  • Sharing patent rights through voluntary licensing would need to involve India’s large pharmaceutical sector.

Challenges in voluntary licensing

  • So far, no patent holders have joined the WHO’s COVID-19 Technology Access Pool.
  • This is why India and South Africa called on the WTO to temporarily waive patent protections for COVID-19.
  •  Meanwhile, the UN Medicines Patent Pool stands ready to accept voluntary licences for COVID-19.

2) Compulsory licenses

  • Compulsory licenses override patent rights to allow local production or import of drugs by generic manufacturers in the event of a public health crisis.
  • Since 2003, this right has been enshrined in the Doha Declaration addendum to the WTO’s TRIPS agreement and this is what India and South Africa are lobbying for.
  • The Doha addendum, Section 5c, offers AIDS, malaria and tuberculosis as examples of what qualifies as a health emergency.
  • By this standard, COVID-19 should easily qualify.

Issues with compulsory licensing

  • Good will: Manufacturers in India say they prefer to work with voluntary licences because there is more good will between companies while compulsory licences often come with a legal battle brought by the patent holder.
  • Time factor: Voluntary licences also enable production to begin more expeditiously as they usually are accompanied by “technology transfer” meaning that the patent holder reveals to the licensee how to manufacture the medication.
  • No need to reverse engineer: Volunatry licensing spares the licensee the lengthy and costly process of figuring out how to reverse engineer the product.

3) COVAX option and issues

  • COVAX programme was established to purchase vaccine doses and donate them to low-income countries.
  • It does not involve modifying patent rights.
  • Underfunded: COVAX is also currently underfunded.
  • Delay: The Director-General of WHO warned that people in the lowest-income countries might have to wait until 2022 to get vaccinated through this programme.

Government aid should entail an obligation

  • The billions of dollars in government aid given to companies to help develop COVID-19 treatments should entail an obligation to enable the mass production of affordable vaccines.
  • Patents are not ironclad ownership rights, they are a temporary contract that balances the public interest with the claims of the innovator. 

Consider the question “What is the importance of ensuring availability and affordability of Covid-19 vaccine throughout the world? What are the options available to ensure that?”

Conclusion

This is not just a question of social justice and ensuring life-saving therapies are available to the world’s poor. It is a necessary step to prevent deadlier, more contagious and possibly vaccine-resistant variants of COVID-19 from proliferating in an under-vaccinated world.

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