This article is part of our special report Reshaping global health after COVID-19.
The EU’s counter-proposal to the request to waive intellectual property (IP) rights on COVID vaccines is meaningless as it deals with patents without any technology transfer, according to a health expert.
Ellen ‘t Hoen is a lawyer and public health advocate working on pharmaceutical policies. She spoke to EURACTIV’s health reporter Giedre Peseckyte.
The IP waiver proposal was tabled to the World Trade Organisation in 2020 October. One year later, are there any developments?
What I understood from the last formal WTO’s TRIPS Council, is there is not much progress. The ministerial conference, the meeting of all the WTO members, will take place at the end of November or early December. And it’s expected that something will be adopted there.
Do you have any guess on what might be decided then?
It is hard to say. There’s really not been much progress so we can’t really say where this is going. The other thing, of course, is a G20 meeting next week. And that is an important group of countries to move these things forward. So let’s hope they take some forceful action. As you know, the United States is supporting the IP waiver for vaccines. It’s not clear what they’re doing to make that happen.
What is your opinion on the IP waiver?
It’s important to recognize that the waiver has limitations. Some people talk about the waiver as if it can solve all problems but that will really not be the case and certainly not for vaccines, because you don’t just need the IP waived or licensed or whatever.
You also need know-how and technology transfer, for instance. And that is something that you cannot guarantee with a waiver because you need a level of engagement, a level of collaboration by those who hold the know-how.
At the beginning of June, the EU submitted a multilateral trade action plan envisaged to expand the production of COVID-19 vaccines and treatments to the WTO. It mainly focuses on compulsory licensing. EU officials called it a “holistic response”, but is this alternative any better compared to IP waiver?
We published an analysis of the EU proposal and our conclusion is that their proposals are mostly meaningless. First of all, compulsory licensing can deal with patents but does not transfer the technology. Second, the EU proposal offers flexibility that countries already have. They are already in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The only thing that might be useful is the waiving of the requirement that a compulsory license should be predominantly for the supply of the domestic market. But that’s all, that’s the only thing that might be somewhat meaningful in this proposal.
So, what is the best way if neither an IP waiver or the EU’s proposal is good enough? How can know-how and technology transfer be granted?
You saw in the early days of the pandemic a brief period of overall togetherness and solidarity in global groups. But as soon as the vaccines actually existed, everyone was running like mad to get in front of the queue and order as many vaccines as they could. And all of those lofty promises of global groups and solidarity went out of the window.
But let’s not forget that the development of these vaccines has been primarily financed with public resources. That, of course, would have been a good moment: if you place an order for millions or billions in some cases, then you can make a few demands. So the government that has financed those vaccines could have taken action and say we want you to share the know-how that you have developed using this public financing. This is something that should have been done in the first place and is, therefore, a big policy failure.
I think now there needs to be much more pressure on the companies, by governments to share the know-how and the IP. There is a mechanism through which that can be done, the World Health Organization established in May 2020. That is a voluntary mechanism and companies refused to collaborate. But the government can compel companies to engage with that, to transfer the know-how through the COVID-19 technology access tool. I think that would be a good outcome. But it requires political will to make it happen, and we have not really seen it yet.
Why is an IP waiver so polarizing?
An IP waiver is not only about vaccines, it could be useful for other technologies, for example, for small molecules. And it should not be forgotten that the waiver proposal is also in a way a response to the failure of the effectiveness of voluntary mechanisms. So to keep political pressure up is probably a sensible thing to do while looking for better approaches to deal with it.
There are now talks about a pandemic treaty. What I hope is that those negotiations will start and that they will include new international norms, international regulations, for the sharing of essential know-how and intellectual property when it comes to pandemics. Because what we’ve seen in the last year and a half that trying to regulate that whilst in the midst of a health crisis is very difficult is proven to not be effective. So we need to put them in place so that sort of getting triggered when there is a pandemic.
[Edited by Gerardo Fortuna and Benjamin Fox]