Actualizado: 20 oct 2021
General media is recently running many stories regarding COVID vaccine patents and the possibility of waiving IP rights to make them more accesible. This initiative has publicly been supported by Joe Biden, President of the United States, while the European Union firmly opposes.
The rationale behind patent rights is that by giving their holders a temporary monopoly research and innovation are encouraged. We can consider that the speed with which many private companies have come to obtain the vaccine against COVID is a success precisely of this system. Critics, however, point out that pharmaceutical companies have benefited from significant financial aid from governments to carry out this task.
The World Trade Organization (WTO) provides a legal instrument that allows the waiver of patent rights in cases of health emergency. This mechanism was initially requested by South Africa and India, and it's quickly gaining momentum. However, this suspension will unlikely succeed since it requires the consensus of all WTO members, and there is already evidence of opposition from European countries.
Although the suspension of patent rights is gaining popularity, the reality is that patents do not appear to be the main barrier to the distribution of vaccines. There are other purely organizational issues that are of vital importance, such as the shortage of raw materials or production capacity. To this it must be added that the know-how acquired by pharmaceutical companies is not contained in patents, and they could refuse to share this information even in the presence of a patent waiver.
American pharmaceutical company Pfizer has even declared that the patent waiver could have a negative effect. They claim that their vaccine requires 280 different materials and components that are sourced from 19 countries around the world. Without patents, entities with much less experience in the manufacture of vaccines than Pfizer will begin to compete for the same components, which could exacerbate shortage problems.
The alternative system that is presented to us is that of licenses, which can be decreed by the government (as has happened in Israel with some treatments) or be negotiated voluntarily (such as UK's AstraZeneca with India's Serum). These licenses, either mandatory or voluntary, respect patent rights and provide a compensation to the owner.
It may well be that the support granted to the United States to the waiver is simply a strategy to boost licensing initiatives. This would indeed be less disruptive and more respectful with a system that, despite its shortcomings, has given us up to 19 different vaccines in record time.
Adrian Esquivel Vargas
Esquivel & Martin Santos
Trademark, Patent and IP law firm in Spain