Category Coronavirus

Public Lies and Public Goods: Ten Lessons From When Patents and Pandemics Meet

[Peter Drahos] Abstract: The paper examines three decades of the history of patents and pandemics that begins with the HIV/AIDS pandemic and TRIPS. This history demonstrates that the patent system is itself a huge source of risk when it comes to managing the risks of pandemics. From this history ten core lessons are extracted. The central message of the paper is that developing countries will have to focus on collaborations among themselves with the aim of building a wide base of rich manufacturing experience in the production of medicines and therapies. They can expect no priority of treatment under the present patent-mediated response to pandemics.

The Impracticality of Relying on Compulsory Licenses to Expand Production Capacity for COVID-19 Vaccines

[Brook Baker] The complications and limitations of compulsory-license-reliant measures to respond to the COVID-19 pandemic need to be better explained. The European Union and several other countries espousing reliance on TRIPS-compliant compulsory licenses to overcome patent barriers have opposed the India/South Africa temporary intellectual property (IP) waiver proposal on COVID-19 health technologies at the World Trade Organization. Although compulsory licenses (CLs) on patent alone may be sufficient to allow generic production of small molecule medicines, CLs are unlikely to suffice with respect to vaccines, biologic medicines, including monoclonal antibodies, and more complex diagnostic tests, medical devices, and respirators.

Disinformation, Diversion, and Delay: The Real Text of the European Union’s Communication to the WTO TRIPS Council – Urgent Trade Policy Responses to the COVID-19 Crisis

[Brook Baker] If the European Union’s Communication to the TRIPS Council – Urgent Policy Responses to the COVID-19 Crisis has no real substance, then it is fair to conclude that its true purpose is disinformation, diversion, and delay. The Communication purports to address clarifications needed to make existing TRIPS flexibilities more operational for countries that might need to issue compulsory licenses to access COVID-19 vaccines and therapeutics. However, the proposed clarifications have no substance beyond what is already well established in the text of Articles 31 and 31bis of the TRIPS Agreement and of the Doha Declaration on the TRIPS Agreement and Public Health. When a powerful group of nations, like the E.U., offers a set of “pseudo” proposals with no substance, we can look beyond the façade to see that their real intention is to misinform decision-makers, the press, and the public and to divert attention from the proposal by India, South Africa and 61 other countries to the WTO to waive intellectual property protections on COVID-19 health products and technologies for at least three years.

The COVID-19 Pandemic and Trade-Related Security Exceptions: An Analysis of the Flexibility under International Law

[Muhammad Zaheer Abbas] The COVID-19 pandemic has raised serious concerns about affordable and equitable access to the needed health technologies. The patent-based pricing model of health technologies further exacerbates these concerns. This paper critically evaluates Article 73(b) of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO TRIPS Agreement) to answer the key question: whether this safeguard provision can be invoked by WTO Member States in response to COVID-19 in order to improve access to critically needed health technologies. This is an important question because access to health technologies is a matter of life and death in a pandemic situation.

The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic

[Siva Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, and Graham Dutfield] ...This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal ... We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. Click here for more.

The Proposed Pandemic Treaty and the Challenge of the South for a Robust Diplomacy

[Obijiofor Aginam] The motivation for a pandemic treaty is infallible because of the ‘globalization of public health’ in a rapidly evolving interdependence of nations, societies, and peoples. Notwithstanding the lofty purposes of the proposed pandemic treaty as a tool for effective cooperation by member-states of the WHO to address emerging and re-emerging disease pandemics in an inter-dependent world, the proposal nonetheless raises some structural and procedural conundrums for the Global South. The negotiation of a pandemic treaty should, as a matter of necessity, take into account the asymmetries of World Health Organization member-states and the interests of the Global South.

Letter from 141 Scholars to USTR, re: United States Facilitation of the TRIPS Waiver

Dear Ambassador Tai: As members of the academy, we welcome your new leadership as an opportunity to both restore the standing of the United States as a global leader as well as to build global confidence in the United States as a reliable ally. The leadership of the United States as well as the confidence over the policies supported by the United States is important at this time when the globe seems to be reeling in a crisis caused from a pandemic. The pandemic has highlighted that a public health crisis in one part of the world can affect not just global trade but also affects issues that the United States as well as the WTO stands for, in unimaginable ways. Thus, the pandemic makes it imperative for countries to find solutions to promote global collaborations during the current crisis.

A New WHO International Treaty on Pandemic Preparedness and Response: Can It Address the Needs of the Global South?

[Germán Velásquez and Nirmalya Syam] A recent joint communiqué by 25 Heads of Government and the WHO Director-General have called for the negotiation of a pandemic treaty to enable countries around the world to strengthen national, regional and global capacities and resilience to future pandemics. The COVID-19 pandemic has demonstrated the fragility of the mechanisms at the disposal of WHO for preparedness and response to pandemics. The use of binding instruments to promote and protect health in the context of pandemics is needed.

Educators, Libraries & Researchers Praise President Biden for Endorsing Waiver of All IP for COVID in WTO TRIPS Waiver

[PIJIP] Today educators, researchers, libraries, academics and other advocates praised President Biden, USTR Ambassador Katherine Tai and the Administration for formally supporting the WTO TRIPS waiver, including for copyright. “By supporting a waiver of ‘intellectual property for COVID-19 vaccines,’ not just of patents, the statement would presumably extend, for example, to the copyright protection that can exist on computational algorithms needed to produce mRNA vaccines. It is less clear whether the Administration’s support extends to access to copyright for other needed activities, such as to repair software enabled devices or to enable text and data mining research. Clearly, however, this is a great advance for the cause of ensuring that intellectual property bends to the public interest, not the other way around.” said Sean Flynn, Director of American University’s Program on Information Justice and Intellectual Property.

Third-Way Proposals from Big Pharma and the WTO are the Same-Old Way: Commercial Control of Supply, Price, and Distribution

[Brook Baker] This Policy Brief from the People’s Vaccine Campaign, written by Prof. Brook K. Baker, is highly relevant to the discussions of the India/South Africa TRIPS waiver proposal at the WTO. The Policy Brief distinguishes between (1) industry controlled efforts to manage the global supply of COVID-19 vaccines and other health technologies that results in the inevitable consequence of inadequate supply, needlessly high prices, and grossly inequitable distribution and (2) government-led efforts to free additional qualified manufacturers from intellectual property and technology transfer barriers that stand in the way of building near-term and sustainable biopharmaceutical manufacturing capacity in underserved developing country regions around the world.

Joint Appeal by 388 Members of the European Parliament and of European National Parliaments Urging the EU and its Member States to Support a TRIPS Waiver

One year after the adoption of the first lockdown measures in Europe, it is clear that we must urgently and exponentially increase manufacturing and availability of vaccines, tests, medicines and protective materials, and that requires wider sharing of proprietary technology and knowhow, data and resources, especially with low- and middle-income countries. We stand with the Director-General of the World Health Organization, over 100 national governments, hundreds of civil society organizations, and trade unions, and join them in urging the European Commission and EU member states to discuss at the highest levels and support the temporary waiver of certain obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Click here for the full statement and endorsers.