Pros and cons of waiving the patents on Covid-19 vaccines

COVID-19 vaccines are now our best tool for fighting the pandemic. And they are also our biggest hope for a return to normality. However, the manufacturing capacity of the companies behind the development of the different vaccines around the world is insufficient to meet global demand. 

 In addition, the complexity of the pandemic in countries like India has prompted more and more countries to demand a temporary waiver of industrial property rights on the vaccines and the suspension of their patents.

So much so that the US President himself, Joe Biden, after initially resisting such a move, has shifted his position in recent weeks to one of support for the countries clamouring for a suspension, mindful of the need to speed up the pace of vaccine production. This new scenario has sparked fierce debate between the countries that back the measure and those that advocate patents as an essential tool for monetizing knowledge, also citing the risk and uncertainty assumed by the pharmaceutical industry in its research and development of these vaccines. 

"The debate is an extremely complex one because it requires us to reconcile interests that, on the face of it, are at odds with each other: global public health to end the pandemic, and the business interests of the pharmaceutical companies", explains Fabiola Leyton, course instructor at the Faculty of Law and Political Science of the UOC and expert in bioethics, adding that, whatever the decision, "it will give rise to an uncertain scenario". 

Limited production capacity

Patents grant their holders exclusive rights for 20 years, thereby preventing others from manufacturing or marketing the object of the patent without the holder's consent. Therefore, the patent is a form of recognition of the company’s work and R&D effort to produce new and innovative solutions for solving technical problems, as is the case of the COVID-19 vaccines. 

"The problem that we are currently seeing is that the companies that patented the vaccines are not meeting the agreed production delivery deadlines and are not complying with their production promises, which is delaying the possibility of vaccination and slowing down the fight against the pandemic”, explains Oriol Yuguero, course instructor of the UOC's Faculty of Health Sciences and bioethics expert.

 Moreover, we can tackle current variants with the vaccines that we have available, but if the pandemic goes unchecked, the future will be uncertain. "New mutations may appear, which will compromise our ability to control the infection, so we need to adopt a global vision," says Yuguero. 

 At first sight, then, everything suggests that compulsory licensing or patent suspension could be the solution for ramping up vaccine production and guaranteeing its access by the population. However, there is no guarantee that compulsory licensing will solve the production problem in the short term. "The roll-out of vaccine manufacture will require those who take up the challenge to be knowledgeable in novel technologies such as messenger RNA and to have the necessary infrastructure in place to provide utmost assurance for this manufacture", says Mercedes Avilés, course instructor of the Faculty of Economics and Business at the UOC, industrial property agent and patent expert. She adds that the temporary waiver of rights on the vaccine "could result in the patent holder failing to recover its investment in its development, and in the obligation to share its know-how with third parties, which could translate to a loss of competitiveness for the pharmaceutical company", says Avilés. 

Nonetheless, we cannot ignore the fact that certain pharmaceutical companies have already signed collaboration agreements with other companies and states, but that the vaccines are not being manufactured at the required pace. "To reach optimal coronavirus safety levels, at least 70% of the world population must be vaccinated, so while there are still countries without access to vaccination for their population, we are not going to address the problem, and the inequalities will be accentuated", says Leyton. 

Another point for consideration is that a large proportion of the funds used in the research and development of these COVID-19 vaccines came from the public purse. "This issue needs to be addressed because there should ultimately be a return and a share in the intellectual property rights or at least in the benefits arising out of this public funding", says the bioethics expert. 

Decrease in R&D in the pharmaceutical industry

The pharmaceutical industry is one of the biggest investors in development, by sector, and allocates a large part of its resources to research. Waiving these patents could set a precedent for the development of new vaccines or drugs, not only against COVID-19, but also for diseases that cause new public health problems. This new scenario could deter the pharmaceutical industry from launching new lines of research to solve these problems.

 Thus, the refusal to protect industrial property rights during this global public emergency could act as a disincentive for these companies and for the development of other drugs. "However, the suspension of patents on COVID-19 vaccines in the current situation must be an imperative of distributive justice," says Leyton. 

In this regard, the regulatory agencies and states must work to reach agreement on the design of other scenarios, in which patent suspension does not hinder the development and research of new drugs. This will allow compensatory mechanisms to be put in place to stimulate innovation and the development of new drugs once the pandemic is over or for future situations.

"We need to start adopting this vision of seeking global solutions. We cannot be trying to curb the pandemic while we have developing countries that are unable to vaccinate. This situation will compromise our control of the infection. This knowledge must be put to the service of the public so that we can manufacture the vaccine and ramp up production", says Yuguero. 

Arguments in favour of a patent waiver 

• The pandemic is a global public health problem.

• Patent holders cannot produce enough vaccines to meet demand.

• Public funding is used for the development of some COVID-19 vaccines. 

Arguments against a patent waiver 

• Reduction in the return for patent holders on their R&D investment in the vaccine.

• It requires heavy investment in highly specialized equipment, infrastructure and emerging technologies by those who decide to manufacture the vaccines. 

• A possible precedent with regard to possible new solutions that could emerge to combat COVID-19.