On 2 October, India and South Africa sent a joint communication to the Trade Related Aspects of Intellectual Property Rights Council of the World Trade Organisation, the multilateral institution formed to promote free trade between countries. The communication asked the body to recommend a waiver of major intellectual-property provisions of the TRIPS agreement for technologies to prevent, contain and treat COVID-19. The proposal was made in the middle of the global race to develop medicines and vaccines against the coronavirus.
The communication said, “It is important for WTO members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19.”
At the heart of the debate about access to COVID-19 related vaccines, diagnostics and medicines are the contentious provisions of the TRIPS agreement. The WTO largely functions on the assumption that free trade helps increase the wealth of the nations and is thereby one of the pathways for poverty reduction. Intellectual-property rights or IPR recognised under the TRIPS agreement include patents, trademarks, and copyrights. These provisions provide monopoly rights to “innovator” companies, thereby preventing competition. Such monopolies, when applied to health-related products such as medicines, diagnostics, medical valves or even masks hinder accessibility and affordability by denying the early entry of generic products into the market.
For example, in 2013 the United States approved a drug from Gilead Sciences called sofosbuvir meant to treat hepatitis C. The company got a patent in several countries including the US, granting it market monopoly up to 2024. As a result, a complete course of sofosbuvir cost $84,000 in the US. The same course is available as a generic in Egypt, where there was no patent, for just $1,900. The ostensible reason for granting patents to innovators is to encourage research and development and reward path-breaking innovations. However, patents have been used more as blanket commercial incentives resulting in the erosion of patient welfare. Moreover, most basic molecular research is not done by pharmaceutical companies themselves but in public universities funded by taxpayer money. Gilead Sciences got funding through the government-run National Institutes of Health in the US to develop sofosbuvir and still applied for a patent.
Even before the COVID-19 pandemic, 50 percent of the world population lacked access to health technologies. Members of the WTO recognised public health barriers that intellectual property rights and TRIPS created at the organisation’s Doha ministerial summit in 2001. They agreed to allow TRIPS provisions to be interpreted in such a manner as to protect public health. The Doha Declaration that emerged from the summit allowed use of provisions like compulsory licensing, which allowed governments to suspend or revoke patent monopolies and allow generic manufacturing during emergencies like the current pandemic.