Patently necessary: taking health into our own hands

From the very beginning of the pandemic, monopolies on the production of tests and medicines were a part of the problem of surviving it.

Posted on 10/06/2022
By Achal Prabhala

At long last, the World Trade Organization is slated to open formal discussions on intellectual property waivers to help developing countries in the fight against Covid-19.

This pragmatic and humane idea was first proposed 18 months ago at the height of the pandemic. The proposals have since been woefully diluted: indeed—in their current form—it would seem the WTO has finally achieved the consensus it was looking for, since, apparently, everyone hates them. Hidden in the folds of this fiasco, however, is an important lesson for the developing world.

From the very beginning of the pandemic, monopolies on the production of tests and medicines were a part of the problem of surviving it. We went from a situation in 2020 during which tests and treatments were in short supply to a situation in 2021 in which vaccines were being made in far smaller quantities than was possible. This led to shamefully unequal access to these essential tools of survival. While vaccine access generally improved towards the end of 2021, there are still glaring disparities. To date, 93% of all contracted mRNA vaccines from Moderna, Pfizer and BioNtech have gone to rich countries, according to data from Airfinity, a health analytics company. Promising new treatments such as Pfizer’s Paxlovid which are now standard treatments in rich countries are almost completely unavailable in poor countries.

‘Promising new treatments such as Pfizer’s Paxlovid which are now standard treatments in rich countries are almost completely unavailable in poor countries.’

The TRIPs waiver—named after an obscure but powerful rule that obligates WTO member countries to uphold pharmaceutical monopolies—was meant to solve this problem. As the initial proposal was deflected, objected to, or just outright blocked by rich countries over a period of 18 months, people around the world suffered and died. The international community should be ashamed of this failure. Nevertheless, we find ourselves where we are, on the eve of discussions regarding proposals that have been dramatically watered down. What are we to make of this moment?

The first thing to understand is that critics of the current proposals are right: the ideas first put forward 18 months ago were more comprehensive and would have enabled us to turn the tide on the pandemic far sooner. The original proposals asked for intellectual property rights on all crucial aspects of our survival—namely tests, treatments and vaccines—to be waived for the whole course of the pandemic. These demands would have covered our immediate need to ramp up testing and would have delivered far greater quantities of treatments to those in need much faster. Consider the case of Bangladesh, where Pfizer’s patent on Paxlovid does not extend. Beximco—a pharmaceutical company based there—was able to manufacture and deliver the drug a mere ten days after the US Food and Drug Administration approved it, saving thousands of lives.

‘By limiting the waiving of patents to vaccines, rich countries have ensured the WTO plan will have a limited effect on the availability of treatments and tests that are so desperately needed.’

But, alas, the revised waiver proposal now under discussion at the WTO covers vaccines alone. This is perverse. By limiting the waiving of patents to vaccines, rich countries have ensured the WTO plan will have a limited effect on the availability of treatments and tests that are so desperately needed.

No matter how flawed the revised TRIPS wavier proposal is, the potential it holds to prompt a wider discussion among WTO member countries is probably a good thing. For the first time in eighteen long months, there has been a measure of agreement, however inadequate, between key WTO players to move forward: an essential prerequisite for the WTO to move the proposal into formal multilateral discussions. So far, discussions on potential waivers have been bilateral, or between groups of similarly-inclined countries, which is to say they have been unproductive and unaccountable to the international community.

The outcome at the WTO next week is almost certain to disappoint public health activists. Some rich countries are intent on further watering down the proposals and perhaps suppressing them altogether. A wide section of international civil society believes the proposal at the WTO has no value, even as a starting point. They argue that the WTO is in effect supporting a global protection racket: formal permission from the world’s richest countries to the rest of the world to allow them—without fear of reprisals—to do what they are in fact legally entitled to in order to survive an emergency.

‘But it’s also vital that we—those living in developing countries, the majority—begin to understand and use our own sovereignty to arrive at solutions.’

So, what if a decision could be taken at the level of the nation-state to simply roll back or even temporarily suspend patents, regardless of what’s decided at the international level? This would bring the immediate relief that developing countries need and arguably increase their bargaining power at the WTO. In September 2021, one country did exactly that: Brazil passed a law that went beyond even what the original TRIPs waiver proposal had asked for, and it did so with an overwhelming domestic majority and cross-party support. Even though the law was ultimately diluted by a Presidential veto, it remains in effect today and is perfectly permissible under the WTO’s own rules. This option, to create a legislative framework that supports increased supplies of tests, treatments and vaccines, and moreover, encourages their manufacture everywhere, is one that is open to all developing countries today.

Through this pandemic, we have heard much of the unfair way a majority of the world is being treated by a much smaller and wealthier minority. This situation deserves our outrage and attention. But it’s also vital that we—those living in developing countries, the majority—begin to understand and use our own sovereignty to arrive at solutions. The mRNA vaccine technology of today will define the future of global health. Many in the developing world understand that suspending pharmaceutical monopolies is an integral part of securing our present and future wellbeing. But what is less widely understood is that developing countries can do a lot to fix these problems on their own—or better still in concert with others—without having to wait endlessly for permission to do so.

Achal Prabhala is the coordinator of the AccessIBSA project which campaigns for access to medicines in India, Brazil and South Africa.

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