By Bushra Haque

The patent law world has recently been challenged with whether patent rights should be waived for the COVID-19 vaccines. It has been almost two years since the COVID-19 pandemic has changed our lives, and it often feels like life will never be normal again. At the end of last week, the world was alerted to the spread of the omicron variant—yet another mutation of the COVID-19 virus.^[1] Due to this new outbreak, the World Trade Organization (WTO) canceled a meeting in which there was to be a debate on waiver of patent rights on the COVID-19 vaccines.^[2] This led to nurses unions around the world filing a complaint with the United Nations (UN), alleging that some wealthy nations are violating human rights by blocking waivers that will ensure safety of healthcare workers and the spread of equitable vaccine access.^[3] So, are the nurses right? Should the vaccine patents be waived?

In 1995, countries signing up to be members of the WTO agreed to comply with the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) in exchange for reducing trade barriers.^[4] This agreement included recognizing patent rights on pharmaceutical products.^[5] However, a 2001 agreement clarified “that the TRIPS agreement does not and should not prevent member governments from acting to protect public health.”^[6] Those who support waiving the patent rights in this current situation argue that the COVID-19 vaccines are covered under this clarification.^[7]

Waiving the vaccine patents seem to be the only real long-term solution to the COVID-19 pandemic. This pandemic is a global issue, and we cannot expect to get back to pre-COVID, “normal life” until it stops being an issue all around the world.^[8] Unequal global vaccination rates are continuing to allow other mutant strains of the virus to emerge and spread throughout the world. ^[9] As of mid-September of this year, just 3.07% of people in low income countries had received at least one dose of the vaccine compared to 60.18% of people in high income countries. ^[10]

In response to the spread of the omicron variant, the Biden administration banned travel to South Africa and seven other countries.^[11] President Biden also stated that the pandemic will not end until there is global vaccine access and declared his support for waiving the intellectual property rights on the vaccine.^[12] This indicates that the waiver is the only long-term solution to the COVID-19 virus. Travel bans are not long-term solutions and do not actually fix the looming health risk, but allowing for equitable global vaccine access by waiving the intellectual property rights would.^[13]

Opponents of the waiver argue that the patents must be protected so that pharmaceutical companies can preserve their profits and have incentives for research and development in the future.^[14] However, the debate at hand is not about waiving patent rights in the pharmaceutical industry as a whole, but rather for one vaccine for one virus. Additionally, it would take a long time for middle and low-income countries to be capable of producing the vaccine.^[15] Thus, the vaccine companies would still have time to make profits, and since waiving the patent rights would just pertain to this one issue, they would still have incentives for future research and development. Furthermore, the profits of pharmaceutical industries from the vaccines do not compare to the amount of financial loss caused by deaths and economic damage resulting from the pandemic.^[16]

Intellectual property rights are important and should typically be protected, but there needs to be room for exception when public health is dependent on it. Equitable vaccine access around the world is essential to getting social and economic pre-COVID life back. Thus, in addition to preserving human life, for the sake of normalcy, the intellectual property rights on the COVID-19 vaccines need to be waived.

[1] Sam Westfall and Miriam Berger, Nursing Unions Around the World File U.N. Complaint as Debate Over Vaccine Patent Waiver Stalls, wash. post (Nov. 30, 2021, 12:59 PM), https://www.washingtonpost.com/world/2021/11/30/vaccine-patent-waivers-nurses-unions-un/.

[2] Id.

[3] Id.

[4] Anthony D. So, WTO TRIPS Waiver for COVID-19 Vaccines, john’s hopkins bloomberg sch. of pub. health (May 10, 2021), https://publichealth.jhu.edu/2021/wto-trips-waiver-for-covid-19-vaccines.

[5] Id.

[6] Westfall and Berger, supra note 1.

[7] Id.

[8] COVID Vaccines: Widening Inequality and Millions Vulnerable, united nations (Sept. 19, 2021), https://news.un.org/en/story/2021/09/1100192.

[9] Id.

[10] Id.

[11] Myah Ward, Biden Admin Announces Travel Ban for South Africa and 7 Other Countries, Citing New Variant, politico (Nov. 26, 2021, 2:42 PM), https://www.politico.com/news/2021/11/26/biden-admin-announces-travel-ban-for-south-africa-and-7-other-countries-citing-new-variant-523394.

[12] Id.

[13] See Alex Ledsom, New Worldwide Travel Restrictions and Travel Bans Introduced Under Threat of Omicron, forbes, (Nov. 30, 2021, 1:48 PM), https://www.forbes.com/sites/alexledsom/2021/11/30/new-worldwide-travel-restrictions-and-travel-bans-introduced-under-threat-of-omicron/?sh=58b447ce1b74.

[14] Westfall and Berger, supra note 1.

[15] Id.

[16] Brink Lindsey, Why Intellectual Property and Pandemics Don’t Mix, brookings (June 3, 2021), https://www.brookings.edu/blog/up-front/2021/06/03/why-intellectual-property-and-pandemics-dont-mix/.