As the Northern hemisphere is about to enter winter, the threat of COVID-19 looms even greater than before. Cold air and more time spent indoors are likely to increase the transmission of COVID-19 drastically. Many individuals and governments are putting their hope into a breakthrough on a vaccine to keep them safe. But current intellectual property (IP) regimes may hinder and delay life-saving vaccines.
In Canada, the US and the EU, a patent can be valid up to 20 years after its filing, which means that the company which develops a COVID-19 vaccine can have a stranglehold on the production and pricing of the vaccine for two decades. This can have a significant impact on the ability for most populations to receive the vaccine. With over 1.2 Million deaths and 47 Million cases globally, any delay on the implementation of the vaccine will lead to disastrous loss of life.
In addition to the grave possibility of pharmaceutical companies placing a stranglehold on vaccine production through patent for profit (which they have been known to do in cases like insulin). The entire process of developing such a vaccine has been hampered by IP regimes. The European Union attempted to pass a resolution for governments and pharmaceutical companies to pool their IP resources to allow for both the development phase to be faster as well as to ensure widespread and low-cost manufacturing. However, two of the largest powers in the pharmaceutical business, the US and the UK have been incredibly averse to the idea and are leading the campaign against such a resolution. This is likely to mean, barring new legislation, that most countries’ patent regime will govern the dissemination of any new COVID-19 vaccine in their jurisdiction.
Although the first wave of vaccine supply will likely be the largest bottleneck, supply has to be maintained, perhaps for years. This is because the COVID-19 vaccine wouldn’t be similar to the polio or measles vaccine, inoculating one for life, but closer to the seasonal flu vaccine, needing a new one each year for the new mutated strain. This opens up the chance that pharmaceutical companies will make minor improvements to keep updating the patent and keeping their stranglehold on the market similar to the insulin case in the US.
So, what does this mean for various jurisdictions around the world?
UK and US:
The UK and the US are against meddling in their traditional patent regimes, hoping to allow free market competition drive innovation and perhaps come up with a wide array of vaccines. This has been the standard approach of these two pharmaceutical giants for decades, but dangers do lurk in the shadows. With major institutional issues in these jurisdictions in the past such as the insulin and opioid crises, it leaves doubt in the ability for their traditional patent regimes to deliver a new vaccine to their hundreds of millions of citizens.
In part 12 of Canada’s emergency legislation on COVID-19, a measure was added to allow the health minister to circumvent patent law and ensure enough would be produced locally. These measures could be used if the demand is too great for the patent holder to supply and adequate renumeration would be given. However, Canada’s main pharmaceutical lobby group, Innovative Medicines Canada, showed concern regarding how the government wouldn’t have to check with the manufacturer to determine how much they can actually supply. Since the legislation’s coming into force back in March, Canada has not used the bypass powers to supply some direly in need items such as ventilators, so the likelihood of this bypass being used remains to be seen.
New Zealand’s patent regime has compulsory licencing and crown use measures built into it, paving the path for government intervention in circumstances where manufacturers can’t meet supply. Although, these measures are only after negotiating has failed or three years since the patent was granted. This leaves room for pharmaceutical companies to maneuver in a way which may be detrimental to access of the vaccine. As such, there have been calls to amend these laws for national emergency clauses which would ensure the government to step in.
Current IP regimes worldwide are steeped in many historical issues and aren’t flexible enough to deal with unprecedented cases such as the COVID-19 crisis. There are very few precedents for western countries to even use the measures made available by legislation and this may cause unaffordable hesitation. The loss of life that this will result in may be the wake-up call that heralds a revolution in how people view patents.
Jin Xu is a JD Candidate 2022 at Osgoode Hall Law School.