Case of suspension of intellectual property rights

Bill Gates got into a bit of a soup last week with a controversial comment. When asked, in an interview Sky News, Covid answered “no” to a taxonomy of whether or not to amend global intellectual property laws to make the recipe for vaccines more widely distributed. According to him, the obstacle is not intellectual property law, but productive capabilities. “There are only so many vaccine factories in the world,” he said, “and people are very serious about vaccine safety.”

I admire Gates for many things — his success as a pioneer in the information technology industry and the breadth and focus of his generosity. I can not shake my head at his refusal to approve the intellectual property rights waiver we need to increase the global production of Kovid vaccines.

Let’s break down the facts.

Our global vaccine production capacity is 3.5 billion doses per year. To cover even 70% of the world’s population, we need to increase it to 10 billion doses (most vaccines require 2 doses per person). There is no way to reach that number unless we radically expand our current productive capacity.

Gates is opposed to sharing intellectual property because Kovid vaccines (especially new mRNA ones) are very difficult to make. He argued that factories in developing countries could not produce the kind of drugs that would safely vaccinate the world’s population against the disease.

Recent Foreign policy The article, on the other hand, indicates that there are facilities in low- and middle-income countries that can easily recover mRNA vaccines for manufacturing. This view was echoed by the former Director of Chemistry in Moderna, who went on to say that all that was needed was a blueprint and some technical assistance, and that any modern factory could produce the vaccine in three to four months. Concerns about production capabilities seem to be misplaced.

It brings us back to intellectual property. All countries in the world that are members of the World Trade Organization (WTO) are bound by the Agreement on Trade Related Items of the Intellectual Property (TR‌IP) and comply with its terms relating to patents, copyrights and other intellectual property. Laws. The manufacture of Kovid vaccines is largely protected by patent law, while various auxiliary but essential technologies are protected under copyright, trade secret and industrial design regulations. Thanks to their obligations under the TRIP agreement, countries with capabilities and countries willing to fund the re-tooling of existing factories cannot contribute to global demand for vaccine production because they must first acquire the right to manufacture vaccines. From those who have intellectual property rights over these recipes.

The TRIP agreement allows countries to exercise special powers under exceptional circumstances. All Member States have the right to choose the mandatory licensing of intellectual property if they deem it necessary to deal with a public health emergency. As useful as this option is, in the current circumstances, it has no practical benefit, as the production of mRNA vaccines requires access to more than 100 key components manufactured in more than a dozen countries. In addition, access to chemical-free intellectual features such as algorithms, software, and training materials is required – without which vaccines would not be useful.

Mandatory licensing of recipes from developers, therefore, solves only a part of the problem. In order for this to be useful, we need to discuss arrangements with a number of companies that have collectively established the establishment of patents around all the necessary information.

All of this is further complicated by WTO restrictions on production for export. Although countries can enforce mandatory licensing regulations for the manufacture of Kovid vaccines, they must source the necessary materials and supplies from other countries where they are manufactured. Although those countries must license their manufacturing technology to increase production, they cannot export those supplies due to WTO regulations for product-export.

All of these are: If we cannot enforce the broad TRIP exemption that allows a group of countries to temporarily suspend intellectual property restrictions that limit the acceleration of vaccine production, we simply cannot increase vaccine production to the levels we need.

Last October, India and South Africa made a definite proposal to the Council of TRIPs at the WTO. More than 100 other countries have joined in expressing their support. However, due to strong opposition from the US and other European countries that are home to large pharmaceutical companies, nothing has come of this proposal so far.

As a technology lawyer who has been practicing in this field for over a quarter of a century, I understand better than most people the importance of intellectual property for innovation. However, at once, the time will come when humankind will have to put aside commercial needs for the benefit of all mankind. This is such a case.

Rahul Mathan is also a partner in the Triangle and a podcast titled Ex Machina. His Twitter handle @Matton

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