COVID-19’s Intellectual Property Rights (IPRs) Waiver: Will suspending IPRs bring COVID- 19 vaccines to Mexico and the world more rapidly?

Webinar Report – August 2021

Report

The webinar entitled “COVID-19’s Intellectual Property Rights (IPRs) Waiver: Will suspending IPRs bring COVID- 19 vaccines to Mexico and the world more rapidly?” was held in August 2021, organized by Geneva Network and Fundación IDEA. The session featured panelists Mariana Gonzalez, IPRs expert and partner at Becerril, Coca y Becerril; Mark Schultz, professor at the University of Akron School of Law whose chair is endowed by Goodyear in Intellectual Property Law; Yogesh Pai, co-director of the Centre for Innovation, Intellectual Property and Competition at the National Law University, Delhi. The session was moderated by Carolina Agurto, partner of Fundación IDEA. The session was attended by 41 participants, most of whom came from institutions such as pharmaceutical companies, those dedicated to intellectual property, chambers of commerce and representatives of government institutions.

A common idea has been that if intellectual property rights are waived, as was proposed in the WTO in October 2020, vaccines would be produced more quickly- this however oversimplifies the process and ignores many challenges. Those challenges are broader than IP rights, such as having personnel with capacities and the know-how to handle new mRNA technologies, knowledge transference, infrastructure, and strict quality controls. As Mariana Gonzalez continued to explain:

“Even if this exemption is approved, there will be bottlenecks related to production and distribution capacity, availability of materials and necessary equipment. Even the exemption could have a negative impact on medical innovation, as well as the transfer and diffusion of this type of technologies for social and economic wellbeing in the medium and long term, affecting people’s right to access to health. The worst scenario for access to health or to a medicine is when the treatment for a disease does not exist, in this sense, intellectual property provides a temporary exclusivity in exchange for providing a medical solution that in the future can be dosed. Intellectual property has been understood from its initial conception as an incentive to provide solutions, if we do not have the solutions we do not even have access to.”

Gonzalez continued to argue that behind this whole exemption issue is the underlying assumption that intellectual property, especially patents, are a barrier that blocks vaccine manufacturersespecially in developing countries. However, it is important to mention that there is no evidence that patents are a barrier to access to vaccines or COVID-19 related technologies. Gonzales pointed out as we can see that in the pipeline there are more than 200 vaccines, we are not in a monopoly situation where one or a few companies have the solution for this pandemic. We are seeing different solutions being developed in collaboration of different companies in different parts of the world. In fact, patents and other means of intellectual property have contributed to the advancement of science and medical innovation.

Mariana Gonzalez went on to state how patents can provide a recipe, but to be able to produce vaccines requires specialized skills and capabilities as well as a huge economic and production effort, points also supported by professors Mark Schultz and Yogesh Pai. On top of this are very strong quality controls and oversight, which are essential for vaccines to be marketed and commercialized, be it COVID-19 or otherwise. This process requires more than just putting a patent on the table, the manufacturers may not have the technical capacity, infrastructure of their own or a network to manufacture and distribute it. Yogesh Pai exemplified this in a case in India, where not having the
necessary infrastructure increased the cost of vaccine production.

Mark Schultz continued the conversation explaining how intellectual property rights have allowed for cooperation among pharmaceutical companies who would otherwise be competitors leading to a faster development of vaccines. IP rights have also provided a broader availability for manufacturing partners.

“Finding partners was hard, nobody was trying to hold up production, they all wanted to find partners who could do sophisticated work. The partnerships are secured by intellectual property you will never give your secrets to somebody else, you will never teach them how to make your product, unless you have the security that your intellectual property rights will protect your exclusive rights to make that product” -Mark Schultz

For example, Moderna works with 16 companies, in France, Switzerland, South Korea, among others. Additionally, the United Arab Emirates and Saudi Arabia are distributors. Professor Schultz provides another example in how Pfizer is working with its largest competitors to up production.

In terms of improving preparedness for future pandemics Yogesh Pai explained that one of the things that did not happen since the beginning of the pandemic was a global approach (to vaccines). If countries had collaborated and come together and invested in a public fund and that same fund invested in different companies, there would not be these national approaches, which is what has happened today. This is, for example, what has happened in the United States, where they have said you have to supply the United States first because they have been largely funded by the United States. Pai went on to state how a more global approach to this innovation and pandemic fund would have meant a different trajectory in terms of its availability around the world.

“However, having said this there is one point we must understand even if people see that there are so many vaccines capacities in developing countries because of the infrastructure and knowledge available”-Yogesh Pai

Mariana Gonzalez added that the challenge posed by this pandemic and future pandemics implies a collaborative effort where intellectual property, rather than being an obstacle, is a tool for innovation that works in the context of an efficient process of technology transfer from those who develop the technology, often in academia, to those who are in charge of the commercial effort, let’s say closer to the market. This efficient technology transfer is a whole ecosystem that requires suppliers and supply chains that can take years, perhaps decades, to achieve, and thus the generation of multilevel infrastructure with strong private innovation investment and considerable efforts for those who take on this task. International cooperation to transfer the necessary capabilities will be vital and will need to be based on intellectual property and without undermining access to technological solutions.