Updated: Sep 23, 2020
Severe Acute Respiratory Syndrome coronavirus 2 (SARS-CoV-2) commonly called COVID-19 has caused chaos and changed the entire functioning of the world. The pandemic that has brought the world to its knees is right now testing scientists and organizations to create a vaccine that could cure and protect us from this deadly virus.
Researchers and pharmaceutical companies of various countries are racing against time to find a treatment or create a vaccine as soon as possible.
However this has also given rise to moral, ethical and legal questions on patenting and pricing of the vaccine. There is also a scramble amongst various countries to ensure their citizens get first priority.
Now the question that arises is, ‘why are countries fighting to patent the vaccine’?
A patent is essentially an exchange between the inventor and the government, where the inventor releases his invention to the public with regards to creating such an invention and in return the Government gives the inventor an exclusive period of time during which he has absolute claim over the invention (who, when, where, and how that invention is made, used, or sold).
This period is used by the inventor to recover the costs incurred in the form of time, money and resource in creating invention.
Research and development for a vaccine or even a diagnostic test costs billions of dollars. Patenting it not only promotes the innovation of it around the world but also creates and provides companies with some sort of authority in terms of exclusiveness, cost, manufacturing, sales and licensing. However, it is often feared that governments shall use this opportunity to control the distribution process and restrict it based on their interests and political scenario.
The Covid-19 vaccine which has still not been fully developed has a possibility to be patented like any other vaccine. Companies and countries have already started applying to get the vaccines or research product/invention patented. A lot of time, money and resource has been spent by various countries, institutions and organizations in their quest towards the development of a vaccine against covid-19. It is only natural that they would want to at-least recover these costs, if not make a profit from it.
In fact, China’s National Intellectual Property Administration has already given patent rights to the vaccine designed by CanSino Biologics Inc.
The US and UK are also in favor of patenting the vaccine. For companies and countries, this is their method of regaining their researching cost and any other miscellaneous expenses that occurred during the course of research.
Patenting thus protects the legal and economic rights of the organizations creating the product.
The ethical and moral questions that arise out of the possibility patenting the vaccine is a huge challenge that needs to be addressed.
The questions are, will this vaccine be available to everybody, will it be affordable, who will manufacture it etc.?
Accessibility to any medication is normally connected to its affordability and price in the market. With the pandemic affecting the whole world which includes developed and developing countries, everyone will have to have access to the medication in order to successfully get rid of the virus. When an inventor gets the rights for his invention for a particular period of time, he also gets to decide the cost of it, who gets to manufacture and sell it etc. Usually such costs are decided to make up for the expenses that the inventor or company had to deal with/pay and sometimes these are not considered affordable in developing countries.
This is when governments bring up compulsory licensing into the system. Compulsory licensing is generally defined as a permit given by a higher authority to any third party to make, use, or sell a patented invention without the patent owner's consent. This comes into play during such emergencies. The Governments must also be able to pay the inventor the price that he would have normally earned if the product followed the normal method of Intellectual Property Rights.
A conflict of interests exists in terms of patenting the product. The challenge occurs between commercial perspective and social needs and how to find a balance between protecting the interest of the inventor and availability of the vaccine to all.
The covid-19 virus is a disease that is being fought by all countries and patenting the vaccine for it might only prove as a hindrance. To effectively fight the virus, all affected persons need to be treated. Thus the vaccine will need to be accessible to everybody, and not to any particular organization or country.
One of the solutions could be to make the intellectual property available to all under an open license. This method of open source licensing has been used by the publishing industry and technological companies for many years. Creating an open source licensing will also divide the costs and make it accessible for life saving technologies to become an accepted practice. This would not only help private companies but public companies as well.
The EU has also proposed that governments, companies or organization developing the COVID-19 Vaccine could give the IP rights to World Health Organization. This would allow manufactures around the world to produce it at an affordable price. This method was followed with the Meningitis-A Vaccine.
Another option would be to consider the concept of patent pool. Patent pools are formed by organizations or companies across a single sector (for example – pharmaceutical companies) to package the IP rights in a marketable manner. This will not only make the vaccine affordable but will also help companies and researchers to gain back their costs. Patent pooling is considered to be one of the most viable options during a global pandemic. In fact, the WHO has launched a ‘Voluntary Product Patent Pool’ for a covid-19 vaccine. This assists developing countries where the medication may not be considered affordable to all. It also assists companies to waive off their royalties to an extent. However, there are companies as well as countries that do not believe in this system.
What we should understand is that this process has been formed to make the product available for everybody. Giving the right to a company to decide the manufacturer, seller and cost of the product can be deemed discriminatory. Even if it is not affordable for 1 person, it will be considered unfair as we are fighting this battle against covid-19 together and hence it needs to be accessible to all.