The coronavirus crisis has led to the implementation of extraordinary measures never seen before at all levels and worldwide.
Although vaccines were developed in record time, there is still a population without the first inoculated dose in developed countries. When we enter the vaccination of developing countries the situation is much worse. The current pandemic scenario and the distribution of vaccines favor developed countries, since the main vaccine manufacturers are located in these regions. Faced with this situation, is the release of patents a solution?
According to the IP law, the patent holders have the exclusive right to manufacture, sell, and use the vaccine for the entire term of patent protection of 20 years from the date of the filing of the patent. It is said that such protection could impede wider accessibility of vaccines and prolong the pandemic.
According to the claim for liberalizing the Covid-19 vaccines patents, WTO member countries will not be under an obligation, for a temporary period, to either grant or enforce patents and other IP-related rights to Covid-19 vaccines. Contrary to what is generally considered, suspending these rights will not lead to a surge in the vaccines availability.
What is the advantage of liberalizing patents if then there are no manufacturers or those have insufficient or no manufacturing capability to manufacture the required product (or drug) in the quantities expected?
What if we have the vaccines but the distributions capabilities does not satisfied the conditions required?
The European manufacturing capacity led to the current model of producing the vaccine in those countries with manufacturing and distribution capabilities and export them to those nations that lack the production capacity. This model has shown that there’s a national vaccine overproduction for the manufacturing countries and a dependency for those needing to import the vaccines.
In the case of exporting vaccines to developing countries,
What if the vaccines are available but there is a lack of health conditions and resources to inoculate them? Also, how do you ensure that those vaccines are distributed and get where they need to go?
Considering previously named aspects, some references point out that perhaps, the patent license under favorable conditions during a period of time could be a good mechanism. For instance, if a country issues a compulsory license to export vaccines to another nation that lacks manufacturing capability, the exporting country has to ensure that the vaccines are exported to that nation only; that they are easily identifiable through different colour, or shape; only the amount necessary to meet the requirements of the eligible importing country are manufactured; and the importing country has to notify the WTO.
In the case of India, the major vaccine production country, waiving the Intellectual Property Rights for COVID-19 vaccines could be a solution, although the legal instruments seem to leave important aspects uncovered. Voluntary licenses given by patent holders to generic companies on mutually agreed terms could be an interesting mechanism. The voluntary licenses are often shrouded in secrecy where the patent holder controls important decisions such as who would be the ultimate beneficiaries of the vaccine and how the third-party sellers are to be selected.