The Biden Administration seems to have finally woken up by offering its support for waiving of patents for Covid-19 vaccines. This is a rare good news in these gloomy times. Signalling its intention to do away with patents, US Trade Representative Katherine Tai in a statement said, “The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines…The Administration’s aim is to get as many safe and effective vaccines to as many people as fast as possible.” This sudden change of heart for the US administration was welcomed by the global community as its sidestepping on the issue earlier had earned it enormous brickbats from one and all. This developing situation upped the hopes on a patent waiver and has even renewed the debate of transgressing the water tight boundaries of the TRIPS agreement in times which are no less than a global emergency.
TRIPS in times of a Pandemic
So what actually is this TRIPS which is already making a lot of noise when the whole world has been pushed into silence? The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO) which establishes minimum standards for the regulation by national governments of different forms of intellectual property (IP). Medicines and other inventions are also covered by the TRIPS agreement which provide legal protection against being copied, and hence vaccines are no exception.
Coming to patents, a patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, it’s essential some technical information about the invention must be disclosed to the public once a patent application is submitted for its processing. Once issued, a patent has a life span of of 20 years. Patent rights confer exclusive rights which are only applicable in the country or region in which a patent has been filed and granted, in accordance with the law of that country or region. Patent rights are legally enforced in the courts on the initiative of the right owner.
In India, Patents are provided by Indian Patent Office. Any appeal against the order or violation goes to Intellectual Property Appellate Board. This all sums up that the TRIPS regime not only offers vaccine makers exclusive rights to manufacture the shot they developed, but it also grants them absolute autonomy in fixing their prices thereby making it controversial in current times of death and destruction.
A Noble Initiative:
It was in last year autumn that developing nations led by India and South Africa had proposed to the World Trade Organization (WTO) that the patents on vaccinations and other Covid-related items should be waived keeping in view the massive loss of lives that the pandemic had brought along. The said proposal even at its infancy had met with a stiff resistance from the big pharmaceutical honchos which were firmly backed by the developed nations comprising of the UK, EU and US citing the argument that any such act would result in a heavy loss of revenues complimented by the deterrence such act could cause to the future innovation in the field of research and development. The developed world has furthered the argument that even if it was assumed that such a waiver was allowed, it wouldn’t be of much help for it would not be much more than handing over a recipe without offering the much needed assistance or instructions to make any such waiver a real success. They are also of the opinion that since patent covers the bare structure of the blue print but not the precise production process, any such waiver on this new breed of mRNA Vaccines like Pfizer and Moderna wouldn’t be of much success unless this follows an actual transfer of technology from the original innovators of these vaccines. The solution that they offer to fix this problem is to make improvements in their supply chains, reducing certain bottlenecks and a ensuring a smooth supply of ingredients that are pivotal in manufacturing these vaccines.
Even before US changed its stance and voiced its support for a waiver keeping in view this lie threatening Pandemic many nations had already come out in support for this one time waiver. French President Emanuel Macron had sometime back remarked “I completely favour this opening up of the intellectual property” thereby indicating his support for this idea of a waiver of patent laws. Next in the line was the Russian President Vladimir Putin who has been extremely vocal about his support for waiving the patent regime which in turn would boost the supply of covid-19 vaccines to the poorer countries thereby speed the end of this pandemic.
While all these western giants have slowly and steadily coming out in support for this once in a lifetime noble initiative, India the main protagonist in this whole idea has been consistently calling and leading the way be exhibiting its enormous generosity even at the time when we were not hit this hard. Many of the critics are still out with their knives against the Indian government for exporting the prized vaccines to the rest of the world earlier this year. The critics argue that rather than stocking up sufficient vaccines for ourselves, it was extremely foolish to distribute about 66 million doses to about 95 countries in the world under its vaccine maître programme.
While this argument holds a fair amount of water, but a recollection of our recent past suggest that back then the number of fresh Covid-19 cases was going for a nosedive while the world was facing a severe surge in the numbers. Displaying exemplary magnanimity and generosity, which was appreciated by all with World Health Organization chief Tedros Adhanom Ghebreyesus thanking PM Narendra Modi for his continued support to the global COVID-19 response including sharing of knowledge and continued help in combating the novel coronavirus through its Vaccine distributing efforts.
Human cost over Human Agreements on Commerce:
Agreed, that a waiver is not a one stop solution to all our problems, but it might cement our efforts in scaling up vaccinations across the developing world, thereby saving precious, yet undervalued human lives. Even though Covaxin and Covisheld vaccines are already at the forefront of our campaign, a timely waiver could expand the vaccination pool thereby enabling us to open several fronts to fight against this pandemic with all our might. Dr Anthony Fauci, the White House’s chief medical adviser, who has a rare distinction of having worked with seven ex US Presidents was at pains to remark that even in these distressing times, countries have failed to unite and provide an adequate global response to prevent the “tragic” coronavirus outbreak from overwhelming India. He even went on to single out wealthier nations for failing to provide equitable access to healthcare around the world. Dr Fauci was quite candid and direct in saying the world has failed India, but it’s not only India that seems to have been failed, for the whole humanity would be put to shame if the global community fails to prioritise human lives over agreements of commerce and trade carved out by humans themselves.
Basit Amin Makhdoomi is lawyer at J&K High Court.