Covid vaccine patent waivers – the opinion of our vaccine IP specialist

The recent announcement by the US that they will support the WTO initiative to institute a “patent waiver” for COVID vaccines will be welcomed by many. The EU’s statement that they are “ready to discuss” such an initiative shows that momentum is building behind the proposal, giving it a real chance of coming to fruition.

This has been called a seismic change and indeed it would represent a significant departure from established norms in the area (but then we live in very abnormal times). It remains to be seen whether all countries of the WTO will support the proposal (the WTO only moves forward via consensus) and at present some countries with significant pharmaceutical industries are yet to come on board.

If the initiative does pass, it remains to be seen exactly what form it will take – will patents be temporarily suspended or will governments award a series of compulsory licences to selected manufacturers? Secondly, even if the patent waiver does come into force, will it necessarily lead to more vaccines, especially in low and middle income countries? Vaccine manufacture is an incredibly complex process (in contrast, for example, to manufacturing relatively simple drugs such as anti-HIV treatments) and even established vaccine manufacturers with technology and know-how stretching back decades can sometimes struggle to produce the required number of doses of sufficient quality (witness Astra Zeneca’s difficulties). Can sufficient additional manufacturers with the requisite expertise be found? Will established vaccine manufacturers share their know-how (often not included in patents), without which the patent waiver may not change things very much? Finally, although it must be a priority for governments and health authorities around the world to bring the COVID-19 pandemic to an end as quickly as possible, they must keep one eye on the next global health crisis, when the ingenuity and manufacturing heft of the world’s big pharma companies will be needed again. Will such companies be less willing to co-operate in finding solutions if they fear that any technologies they develop will be subsequently made available for free?

Remember, the point of IP is to give entities the confidence to invest in and develop new technological solutions, in the knowledge that they will be able to exploit those solutions without competition from other entities who have not made such investments. The system as a whole does its job well and therefore the implications of any COVID patent waiver need to be very carefully thought through before any such waiver is implemented. As a European IP firm we will watch developments with interest.

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