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Is Waiving COVID-19 Vaccine Patents the Key to Global Distribution?

Vaccine distribution poses a unique challenge to the intellectual property provisions laid out by the World Trade Organization (WTO) as the world races towards herd immunity. In the sprint to develop a vaccine for COVID-19, pharmaceutical firms from around the world developed their own immunisations, from Pfizer and AstraZeneca to Sputnik V. Some vaccines have been proven more effective than others but what about states without the resources to develop and distribute their own vaccines at all? While major pharmaceutical companies are working to produce enough supply for global distribution, cost and export limitations still pose a barrier to global herd immunity.

In October 2020, to address these challenges, India and South Africa proposed a temporary partial waiver of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Negotiated during the 1986-94 Uruguay round, the TRIPS agreement brought intellectual property into the rules-based international trade regime. The waiver would enable WTO member-states to refuse to grant or enforce patents related to COVID-19 treatment and preventions with provisions in place for three years. Advocates of the waiver hope that by removing patent barriers, vaccine production will be more accessible and affordable on a global scale. However, critics question how effective the waiver would be, citing domestic policies as a more significant roadblock.

Though the TRIPS agreement established minimum standards for intellectual property protection, it leaves WTO member states room to adapt their own approach to intellectual property, tailoring protections. This "breathing room" poses a difficulty as domestic protectionism, not WTO regulations, stands in the way of global vaccination efforts. State barriers, though it may seem they are fading, are still important units of action in today’s globalised world.

The European Union has been hesitant to vocally back the waiver, opting to support an alternate proposal that focuses on limiting export restrictions and expanding production rather than undermining patents. State-wise, Russia and China have been long-standing supporters of the waiver, recently joined by hold-out Australia. This reversal was prompted by the Biden administration pivoting from Trump-era patent-protectionism to explicit support of the TRIPS Waiver. In a statement on 5 May 2021, United States Trade Representative Katherine Tai shared that “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”. After investing in Operation Warp Speed to incentivise both vaccine development and the production of necessary raw materials, the US has a vested interest in protecting the interests of the private companies that it partnered with to bring these vaccines to fruition.

Patent law exists for a reason and plays an important role in the international economy. Patents are designed to reward and incentivise innovation, allowing for firms to recoup the sunk costs of researching and developing new technology. Pfizer, one of the main vaccine manufacturers, warns about the unintended consequences of the TRIPS waiver. Pfizer argues that the waiver would be counterproductive in that it would decrease the supply of vaccine raw ingredients for legitimate manufacturing and that third-party suppliers could produce lack-luster vaccines that could "potentially undermine public confidence in vaccine safety". Removing the patent barrier may be a symbolic measure more than anything as AstraZeneca already offers its vaccine at a low cost and many other producers offer free licensing agreements to facilities in foreign countries. Moreover, eroding patent protection in TRIPS could set a dangerous precedent for other industries and pose a challenge when the time comes to call for future public-private partnerships in times of crisis.

In July 2021, the World Health Organization (WHO) held a joint dialogue with the WTO on “Expanding COVID-19 vaccine manufacture to promote equitable access” where there was broad consensus on the importance of keeping vaccine supply chains open. Whether upcoming text-based negotiations result in the adoption of the TRIPS waiver or not, it is clear that achieving equitable global access to vaccines depends on more than patents.


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