The Financial Express

Covid vaccine and IPR protection

| Updated: December 14, 2020 20:17:21

Covid vaccine and IPR protection

Covid-19 is probably the  most challenging  experience for us creating so much of despair and catastrophe. In the past there were a number virus attacks  throughout the globe but Covid-19 is the first one for which countries like Bangladesh has been facing and feeling its direct impact both at health and economic fronts.  In addition to a number of precautions, in respect of recovery, vaccine  has given us  some hope that we will soon be able to come out from this disaster and will be able to lead a normal life soon. But it is not the real picture, there is no reasons to be complacent because of a number of reasons.  Some of them could be because of Intellectual Property issues and thus increased price, quality concerns, availability of vaccines, administrative procedures and  other related disciplines including different protocols developed by WHO etc could come in the way.

It appeared from different press and media report that 196 different vaccines are being developed in different countries, some of them are ahead of the race and are expected to market their   products  soon.

In this race Bangladesh is also not too far behind, the Globe Biotech Limited company initiated the vaccine trial and  are in an effort to develop Bancovid, but it seems uncertain  due to procedural complexities  for clinical trial.  They recently scrapped the deal with ICDDRB due to inordinate delay in developing the protocols for clinical trial. Now the company is looking for a new contract research organisation (CRO).  Our neighbouring country India is also  trying, we have heard that Bangladesh also signed an MoU with an organisation for 30 million vaccines. It is true that the government of different countries are in an unbending competition to ensure quickest availability of  quality vaccine for the welfare of their people.

In this thread, in  the 31st  special session of UN General Assembly held on December 3, 2020, Bangladesh Prime Minister sought urgent  attention and global collaboration to fight the corona virus pandemic,  She raised three very important points-- one of them is to ensure universal and equitable access to quality Covid-19 vaccine. In this connection she requested for transferring technology (Article 66.2TRIPS) by the developed countries to  the developing countries to manufacture it locally. She further requested for providing them with financial assistance to face the challenge to address the pandemic. Referring 2030 development agenda which recognises the fundamental role of universal health coverage for all by the principle of equity, her call came at a time when the whole world is eagerly waiting for vaccine to save the life of millions and billions.

So far, we are aware that 37 countries have pledged their special support to sharing Intellectual Property Rights (IPRs) in the fight against coronavirus, but the key players are missing. IP rights rest mostly with the private sector developers. On October 2, 2020 India and South Africa submitted a proposal to WTO for easing IP barriers that restrict access to Covid-19 medicines, tools, equipment, and vaccines. Following this appeal, Progressive International Covid-19 Response Working Group also on October 15, 2020 and requested members of WTO to remove IPR barriers and ensure a legal system for accelerated technology transfer and equitable access to Covid-19 diagnostics, treatment and vaccines.

When  a company will get a patient right,  the first  thing is the   question of prestige, who is working for a favourable environment for poor countries. But cost for research and development throughout the time for the new innovation is obviously added to the  price of the product.  Patent creates a legal exclusion for 20 years for invention in the form of products or process of making them. Countries are free to prepare their own laws as per the guidance of the WTO IPR agreement as articulated in section 8 of the agreement.  Because of IPR protection the cost of vaccine will remain unbearable for a significant number of world people. It is an urgent need to find out alternatives in that respect.

In the Trade Related Intellectual Property Rights (TRIPS) agreement there are a number of flexibilities, now it is a matter of question how to utilise the flexibilities following rule book prescribed by WTO. In  Article 27 it excludes from patentability diagnostic, therapeutic and surgical methods for treatment of humans and animals. While in Article 31  of the agreement there is a provision for compulsory licence system. The new Article 31bis of the TRIPS Agreement gives full legal effect to this system and allows low-cost generic medicines to be produced and exported under a compulsory licence exclusively for the purpose of serving the needs of countries that cannot manufacture those products themselves. 

A compulsory licence is issued by a government authority or a court to make certain use of a patented invention without the consent of the patent holder. This mechanism generally present in most patent laws, is recognised as a permissible option or flexibility under the TRIPS Agreement, and has been used by a number of WTO members in the pharmaceutical field. However, TRIPS rules originally restricted compulsory licencing to serve mainly the domestic market, unless they were issued to deal with anti-competitive behaviour. 

We came to know that  Ecuador and Chile have issued compulsory licence for pharmaceutical products related to Covid-19, lessons from them could be helpful for us.

On the other hand, information available so far suggests that 80 countries and separate customs territories have introduced export prohibitions or restrictions as a result of the COVID-19 pandemic, including 46 WTO members (72 if EU member states are counted individually) and eight non-WTO members. Most of these have been described as temporary measures. At least two members have already removed some of those restrictions.  The products covered by these new export prohibitions and restrictions vary considerably; most have focused on medical supplies (e.g. facemasks and shields), pharmaceuticals and medical equipment, but others have extended the control to additional products, such as foodstuffs and toilet paper. During the pandemic situation these types of restriction would need to see a new policy.  WTO should ensure transparency and the availability of up-to-date information is an immediate and critical need in that respect.

From the above analysis it appears that Bangladesh would need to start working on several fonts, continue efforts to collect right kind of vaccine available for the people of the country from different sources as the Ministry of Health at the moment is doing. Secondly, speed up activities through its own IP offices  for an urgent response to the COVID-19 pandemic  to address IP barriers, especially concerning patents and trademarks. At the same time, there is the need to provide practical support for firms seeking to develop products of potential benefit in combating the pandemic. 

Ferdaus Ara Begum is CEO, BUILD-- a PPD platform for private sector development

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