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OP-ED: Should the Covid-19 vaccine be patented?

  • Published at 01:49 pm August 24th, 2020
At what cost? BIGSTOCK

A look at how intellectual property rights affect the production of a possible Covid-19 vaccine

The Covid-19 pandemic is toppling citizens and ways of life, sending countries into lockdowns and starting downturns of life and massive job losses, ultimately hampering the world economy. However, lockdowns, self-isolation, and restriction of movement are not the proper solutions to stop this virus. We need vaccines to stop this virus. 

There is an on-going race to advance research and development in this field. World-famous vaccine developers and companies are working hard to develop this vaccine to prevent this pandemic, but here is a question the rest of us should reflect on: Who will get access to those new vaccines? The first company to win the rat race will gain more than just prestige because they will get the patent rights of this vaccine and earn profits such as businesses enjoying a monopoly.

However, in this time of urgency, patent laws may conflict with the equal provision of these future vaccines worldwide. The WHO has played a crucial role in fostering an environment of international cooperation and enforcing equitable access to vaccines on a global scale, by pressuring powerful and wealthy states to collaborate with poorer countries.

Most of the people believe that intellectual property rights are barred for equitable access to the vaccine. Is it a burden to equitable access to medicines, especially to poor countries? We can simply define it as intellectual property (IP) right and patent right is one component of IP. 

It is based on the foundation of providing rewards for innovation and the exclusive right of the innovator. In particular, patents that are of its components create a legal exclusion for 20 years for inventions in the form of products or processes for making them.

According to the Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 8 provides that members may formulate or amend laws and regulations, and adopt necessary measures to protect public health and nutrition and also technological development. 

And Article 27 also excludes from the patent abilities like diagnostic, therapeutic, and surgical methods for the treatment of humans and animals. Most important, Article 31 of TRIPS states that members allow for other use of the subject matter of a patent without the authorization of the right holder to call it a compulsory license. According to WHO guidelines, it can only happen in extreme urgency for a nation. In recent months, countries like Ecuador and Chile have issued compulsory licenses for pharmaceutical products related to Covid-19.

These licenses allow for accessible medicine for and from all countries, not allowing adequate medical establishment. Most of the countries are poor; they have no good medical establishments. The Doha Declaration, additional legislation to TRIPS, makes a specific provision for poorer countries that lack such technology and resources, allowing them to import generic forms of medicine from countries with developing capacity (the Doha Declaration the TRIPS agreement and Public Health, paragraph 6). 

But the implementation of this provision has proved to be lacking. Only Rwanda has had to make use of this scheme. After the export of medicine to Rwanda, medical companies reported that they no longer carry it out because there is no profit. 

In the event of the coronavirus vaccine being introduced, it seems that poorer countries lacking medical infrastructure and resources will be left vulnerable and at the mercy of wealthier states. The government of Bangladesh also called for equal access to vaccines and also signed vaccine innovator countries.

Article 25 of the Universal Declaration of Human Rights clearly emphasizes the right to adequate medical care and so the international community is responsible for ensuring that this right is upheld equally amongst the world population. In the time of such urgency, medicines are a right for all -- it is an inherent human right.

In conclusion, the intellectual property system permits enough flexibility to protect the public good during health emergencies. So intellectual property rights do not bar access to medicine for all.

Sajib Hossain is an independent researcher at the Daily Our Time and also an apprentice lawyer at the Judge Court of Bangladesh.

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