SYDNEY and KUALA LUMPUR, Jul 20 2021 (IPS) – Despite facing the world’s worst pandemic of the last century, rich countries in the World Trade Organization (WTO) have blocked efforts to enable more affordable access to the means to fight the pandemic.
Everyone knows access for all to the means for testing, treatment and prevention – including diagnostic tests, therapeutic medicines, personal protective equipment and vaccines – is crucial.
Anis Chowdhury
European deceit
In October 2020, South Africa and India requested the WTO to relevant provisions of its Agreement on Trade Related Aspects of Intellectual Property Rights (). By May 2021, the proposal had and support from more than .
Despite overwhelming support from low- and middle-income countries, Western governments, Big Pharma and other industry officials dismiss this waiver request as not only unnecessary, but also undermining future technological innovation.
Although most , it is actively by European governments and the European Commission (EC), the European Union (EU) executive.
It is also resisted by Brazil and other rich countries, such as the UK, Norway, Switzerland, Australia, Canada and Japan. However, the a temporary waiver for vaccines, but is silent on the other items urgently needed.
, European leaders that the temporary waiver request is unnecessary, but IP rights (IPRs) are essential for innovation. “IPR regimes have, , second-order effects upon the rates of innovation”. , “when patent rights have been too broad or strong, they have actually ”.
Jomo Kwame Sundaram
They misleadingly claim access can be achieved by existing provisions for voluntary licensing (VL), technology transfer, bulk purchasing and , especially (CL). But these purported solutions are known to be grossly inadequate.
is due to . Hence, many poor countries have not even applied. With IPRs strengthened internationally since 1995, TNCs find technology transfer less profitable.
Big Pharma law
Strict international enforcement of patent protection is recent. Pfizer’s then chairman, Edmund Pratt pushed IP onto the agenda of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), which created the WTO and TRIPS in 1995.
Fearing stronger IP rights would enhance corporate power and reduce affordable access to life-saving medicines, many developing countries resisted TRIPS. But rich countries pushed TRIPS through, using carrots and sticks to divide developing countries.
TRIPS includes CL, first introduced in the 1883 . A government can thus allow a third party to make or use a patented product or process without the patent owner’s consent. But this can only be for domestic use, subject to other conditions, e.g., paying “the right holder … adequate remuneration”.
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Despite great efforts, rich country governments failed to increase members’ TRIPS obligations at the 1997 Singapore WTO ministerial. Nevertheless, US President Clinton tried again at the 1999 Seattle ministerial, .
After 9/11, some concessions were made before the 2001 Doha ministerial, including a new ‘’ of WTO talks. Two decades later, no conclusion is in sight as rich countries see little chance of getting what they want.
With the , campaigning against TRIPS was boosted by President Mandela’s leadership. The included ‘public health exceptions’ to TRIPS. Now, there is no need to first negotiate VLs during health emergencies. Also, countries without manufacturing capacity can use CLs to import cheaper versions.
European deceptions
By insisting that existing TRIPS flexibilities are sufficient, European leaders deny all actual problems in practice. Ignoring decades of experience, they used to insist VL provisions are enough to expand output and share expertise.
In reality, VLs are often , with patent holders choosing beneficiaries and even distributors. Thus, limits what it can produce, and prevents it from meeting Indian and other needs.
They concede when “voluntary cooperation fails, compulsory licences… are a legitimate tool in the context of a pandemic”. But CLs are only relevant for patents, not new vaccines which have not been patented, and other IP barriers.
EC protect Big Pharma, but effectively reject the World Health Organization’s (C-TAP) initiative. C-TAP seeks to enable equitable access to technologies for approved COVID-19 vaccines and therapies. But industry and government as unnecessary, and worse, dangerous for future innovation.
Inflexible ‘flexibilities’
For a long time, Big Pharma and their governments, including the , developing countries not to use the very CLs they now tout as the solution. The against countries using CLs for medicines, only recognising others’ right to use them .
CLs are very difficult to actually use, especially by countries with limited negotiating capacities or manufacturing capabilities. Existing provisions require complicated country-by-country, company-by-company and patent-by-patent negotiations, also raising massive coordination problems.
The CL provision may be enough for some, but certainly not all needed . need several CLs, implying “”.
Also, CL does not require sharing industrial secrets, confidential information, industrial design and other relevant knowledge necessary for viable production. These can be critical, e.g., for mRNA vaccines using new technologies.
Those countries unable to produce themselves have to find others willing to issue CLs to produce cheap generics for export. Yet more are contained in the of TRIPS and the 2001 ‘’.
Bogus claims
In fact, sharing such confidential information not only spurs competition, but . Thus, in India developed a low-cost hepatitis B vaccine, the basis for UNICEF’s lauded global vaccination drive.
Contrary to industry and political leaders’ claims that circumscribing patents would kill pharmaceutical innovation, “a host of new drugs and improved HIV treatments” “the agreement on Public Health exception to TRIPS”. These new and improved treatments effectively ended that deadly pandemic.
After inventing the polio vaccine, Jonas Salk was asked, “Who owns this patent?”. He , “Well, the people I would say. There is no patent. Could you patent the sun?”
