/ Shortage of Covid-19 vaccines triggers global debate on patent release

The worldwide shortage of Covid-19 vaccines has generated a wave of debate on the production and access to medical preparations, which has brought together relevant health and political organizations, as well as various countries. Intellectual property and, more specifically, an eventual suspension of vaccine patents, is one of the topics that have not been alien to this discussion.

Álvaro Ávila
Alessandri Associate

As a consequence of the lack of doses, measures have arisen such as the well-known COVAX initiative (Covid-19 Global Access Fund for Vaccines), launched in April 2020 by the World Health Organization (WHO) and supported by the United Nations (UN), whose objective is to collaborate with vaccine producers so that countries all over the world have equitable access to vaccines. However, as pointed out by Tedros Adhanom Ghebreyesus, director of the WHO, the quantities of vaccines provided by this program to the different states, although they represent progress, only protect 2% to 3% of their populations.

Faced with this scenario, in early October 2020, the authorities of South Africa and India asked the World Trade Organization (WTO) to release the Covid-19 vaccine patents. This request was later joined by nearly 400 other international organizations. Dr. Tedros, meanwhile, in March 2021 urged countries with the capacity to produce vaccines to “begin to waive intellectual property rights”, as provided for in the WTO’s special emergency clauses.

Following these requests, the WTO has held several dialogue sessions with its member states to discuss a possible temporary suspension of vaccine patents. In February 2021, some countries already spoke out against the South African and Indian proposal, which has been reiterated over the weeks and has resulted in the stalling of the initiative.

Despite the WTO’s efforts to reconcile the interests of the various states and vaccine producers worldwide, the debate on the production of and access to vaccines continues to rage, including with regard to intellectual property.

What would a patent suspension entail?

In the understanding that a patent corresponds to the right of its owner to exploit an invention in an exclusive manner, a patent suspension would mean that for a certain period of time the exploitation of the invention would not be an exclusive right of its owner.

Applied to the case of the vaccines against Covid-19, if the aforementioned suspension were to occur, the production of the different medical preparations against the virus would not depend exclusively on the patent holder, but on all the producers with the capacity to manufacture them, without the need to pay anything for it

Although there are many players who have been in favor of the release described above, there have been different voices that see this possibility as a concern. The European Commission has argued that the suspension of vaccine patents would not solve the current problem of access to vaccines. Along the same lines, Farmaindustria, the Spanish laboratory employers’ association, indicated that “there are very few plants on the planet capable of manufacturing them”. Therefore, it has been suggested that the problem of shortage does not lie in the exclusivity of the patents, but rather in the lack of means of the vaccine producers themselves to produce them.

In Chile, there are recent examples of holders who voluntarily requested the release of their patents, as pointed out by the Chilean industrial property agency (INAPI). Specifically, the Abbvie laboratory requested the cancellation of its patents covering the drugs Norvir (whose active ingredient is ritonavir) and Kaletra (whose active ingredients are ritonavir and lopinavir), which, according to the WHO, proved to be effective against Covid-19. The request, which was accepted by INAPI, will mean that the different laboratories will be able to produce their own versions of the aforementioned drugs, in order to make them available to a greater percentage of the population.

Apart from the uncertainty about what will happen on this front and, specifically, about the decisions to be adopted by the WTO (with which Chile is in dialogue), INAPI sees as something positive the fact that the expert knowledge is disclosed and the possibility of exploiting an invention is given to entities other than its inventor. The case of mechanical ventilators and other clinical supplies that, although not patentable, are innovations that can be freely reproduced in Chile, so that more patients have access to them, is a clear example.