Every Crisis is an Opportunity: Covid-19, Patents and Access to Health
Patent systems were created as a “win-win” tool for economic and technology improvement. On one side, it gives inventors monopoly rights for a limited time over their inventions. On the other, it encourages research, innovation, and investments by disclosing the information of such inventions. In other words, patents create a market of knowledge by giving property rights to innovators in exchange for the revealing of their knowledge in order to incentive technological innovation. Accordingly, patents guarantee that private information will enter into the public domain where everyone could have access to such knowledge and improve technology. In other words, patent regimes have two advantages: on the one hand, they provide incentives for the generation and commercialization of inventions, and on the other, they foster the dissemination and use of knowledge. However, it is vital to understand that an IP regime cannot take full advantage of these two objectives simultaneously. This is basically because IP rights foster innovation by restricting use. Therefore, the private benefit conferred to the inventor is derived at the expense of the consumer and may conflict with fundamental human rights such as access to health or knowledge.
Patent systems have multiple critics regarding the coexistence of property rights with other fundamental rights. Many have questioned that in their attempt to encourage innovation, it forgets to serve important public interests. In this regard, patent systems carry public concerns since the use of a patent invention is limited to its owner and the monopoly price for a patentable product could be very high. In the case of medicines, a private monopoly could cause conflict with the human right and public interest of having easy access to medicines at a low cost. Nevertheless, the importance of having an adequate patent protection for the pharmaceutical industry cannot be neglected. Indeed, without patents, the private sector would not be involved in developing new medicines. This industry is considered as one of the most dependents in the patent system. This is because the costs of research and development are quite high, there is much uncertainty in the investment, and it is relatively simple for one company to copy a drug invented by another firm. Hence, patents are an essential tool that a creator has to protect the returns from their investments.
The relationship between pharmaceutical patents and health welfare is exceptionally complex. Restricting access to new medicines plus the lacking functional substitutes can have profound costs in terms of health and well-being. In this regard, if there is an inadequate degree of competition in the market, patents bring extremely high prices, and some may suffer from reduced access. In this regard, drug prices are settled by multiple factors, but a high level of pharmaceutical patenting profoundly contributes to the increase in prices. Moreover, a particular concern for developing countries is that access to drugs depends on affordability. For example, in Mexico, the State provision of medicines is selected and inefficient. Thus, most of the people have to pay for their drugs. For these reasons, strong patent rights have especial implications in Mexico, since only people with high income are able to pay for a full an adequate medical treatment.
The COVID-19 pandemic is bringing again these debates to the table all around the world. The virus has infected at least 524,000 and killed more than 24,000 globally, this numbers will be increasing as the virus keeps spreading globally. The outbreak has affected millions of people and not only the infected ones since it has stopped economies and life as we know it, isolating almost everyone in quarantine. Up today there is no vaccine for the virus neither an effective pharmaceutical treatment developed exclusively to fight the disease. All around the world, scientists and doctors are working intensely to discover the correct treatment with governments and companies giving all the financial assistance to bring vaccines and treatments to the market as soon as possible. Many argue that the pandemic can be solved only by international cooperation by sharing the information, knowledge and experiences globally. “China can teach the US many valuable lessons about coronavirus and how to deal with it. What an Italian doctor discovers in Milan in the early morning might well save lives in Tehran by evening. When the UK government hesitates between several policies, it can get advice from the Koreans who have already faced a similar dilemma a month ago. But for this to happen, we need a spirit of global co-operation and trust. Countries should be willing to share information openly and humbly seek advice, and should be able to trust the data and the insights they receive”.
Accordingly, the international cooperation needs a full disclosure of all investigations and access to medicines that are in hand as possible treatments. In this regard, the most important attacks to the patent industry are regarding the extent in which patents restricts access to existing life-saving medicines by keeping the prices artificially high, and also making more difficult for countries to respond quickly and efficiently to health crises. This has a particular importance in a time where no treatment has been developed and doctors need other medicines to try to tackle Covid-19. In this regard, there are many drugs that do exist but cannot be accessed either because they are expensive or because they are not sufficiently available in a particular market. Additionally, once pharmaceutical treatments and vaccines are developed, there are two important facts that governments have to take into account. The first is that the pricing of the treatments and vaccines will be scrutinized by the companies that developed them. The second is that the demand will be very significant. Accordingly, there is a call of solidarity to reduce patent rights with pharmaceuticals like AbbVie renouncing to restrictions on patent licensees that would prevent generic companies from supplying ritonavir, a drug current being tasted as an effective treatment for Covid-19.
All of the above, raises the question of how to deal with patent barriers to the production and provision of medical treatments and vaccines regarding the Covid-19. People is expecting that products for the prevention and treatment of Covid-19 would be global public goods since there is a public health urgency. However, some countries have shown their own priorities in the crisis rather than addressing it to the global needs. As usually, they used Intellectual Property as a tool to secure these interests. For example, Trump administration was attempting to secure exclusive rights to any vaccine created. They scandalized Germany by allegedly offering 1 billion dollars to a German pharmaceutical company to buy monopoly rights to a new Covid-19 vaccine that they are developing in order to secure it “only for the US”. Germany response by saying that international co-operation is more important than national self-interest and that Germany will develop the vaccine for the whole world and not for individual countries.
Other countries are reviving the figure of compulsory licensing in order to facilitate access to vaccines, drugs, devices and other useful technologies that are useful for the prevention, diagnosis and treatment of the disease. The TRIPS Agreement in its article 31 set a list of conditions of “Use without authorization of patents by the right holder”. The conditions are quite specific and difficult to accomplish in order to secure the legitimate interests and rights of any patent holder. However, such conditions could be ignored by Members in case of national emergency, such as the Covid-19 emergency. Accordingly, many countries are acknowledging interests that go beyond the acquisition and enforcement of IP rights. Turning their heads to articles 7 and 8 of the TRIPS Agreement that balance international interests of having worldwide strong standards of IP rights with fundamental national interests such as public health. Accordingly, these articles reinforce national autonomy and legitimate national policy choices that protect each country interests. For example, Canada has just amended the patent Act by adding section 9.3. that states that under a national emergency the Government of Canada and any person specified in an application to be make, shall construct, use and sell a patented invention that helps to tackle the emergency.
A compulsory license suspends the monopoly effect of a patent and allows others than the patent holder to produce and supply the product. In this regard, Chile adopted a resolution declaring that the global outbreak of coronavirus justifies the use of compulsory patent licenses regarding any treatment device or vaccine that helps to prevent, diagnostic or to threat virus. Israel also issued compulsory licenses related to ritonavir. The National Assembly in Ecuador approved a resolution that requests the Minister of Health to issue compulsory licenses over patents related to coronavirus technologies. Each day of the crisis more countries are following this path in order to secure treatments against the virus
It is said that every crisis is an opportunity, right now countries are acknowledging that patent systems could be more friendly to consumers in order to guarantee access to health. Developed countries are experiencing a health crisis that developing countries fight every day. Nowadays, there are diseases that disproportionally affect developing countries and poor people such as malaria (228 million cases and 405,000 deaths worldwide in 2018), tuberculosis (10 million cases and 1.3 million deaths worldwide in 2017) and other epidemics such as Ebola. These diseases undermine the development of countries and affect millions of people that are unable to cover an adequate treatment. Moreover, the World Health Organization estimated that only 4.3% of the pharmaceutical research and development is focus on these diseases that affect mainly developing countries while pharmaceutical research is aimed to areas where most money can be made.
Accordingly, once the epidemic is gone and we slowly start to return to our regular activities, we have an opportunity to be more emphatic and take into consideration these diseases that do not have the necessary channels of research and investment since they are not “profitable diseases”. To have a deep analysis of what is failing in health systems and why medicines are not accessible to all. Furthermore, it is a big opportunity to place intellectual property in the agenda of human rights in order that both could successfully coexist by including and straightening all safeguards that the same patent system provide to secure fundamental public interests such as compulsory licenses. This will help not only to provide Covid-19 treatments to all but to solve other drug shortages such as HIV antivirals.
- Graham Dutfield and Uma Suthersanen, Global Intellectual Property Law (first published 2008, Edward Elgar Publishing Limited 2008), 110.
- Kenneth C. Shadlen, “Global Change, Political Coalitions, and National Responses” at Coalitions and Compliance: The Political Economy of Pharmaceutical Patents in Latin America (2017, Oxford University Press).
- Kenneth C. Shadlen, “The Transnational Pharmaceutical Sector and Mexico´s Internationalist Patent System” at Coalitions and Compliance: The Political Economy of Pharmaceutical Patents in Latin America (2017, Oxford University Press).
- The New York Times “Coronavirus Map: Tracking the Global Outbreak ” <<https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html>> (accessed March 25, 2020).
- Ellen ‘t Hoen, “Covid-19 and the comeback of compulsory licensing” at Medicines Law & Policy – Research and resources on intellectual property and health. <<https://medicineslawandpolicy.org/2020/03/covid-19-and-the-come-back-of-compulsory-licensing/>> (accessed March 23, 2020).
- Yuval Noah Harari, “The World After Coronavirus” at Financial Times <<https://www.ft.com/content/19d90308-6858-11ea-a3c9-1fe6fedcca75>> (accessed March 20, 2020).
- The Guardian “Coronavirus: anger in Germany at report Trump seeking exclusive vaccine deal” <https://www.theguardian.com/world/2020/mar/16/not-for-sale-anger-in-germany-at-report-trump-seeking-exclusive-coronavirus-vaccine-deal>> (accessed March 21, 2020).
- Alison Slade, “The Objectives and Principles of the WTO TRIPS Agreement: A Detailed Anatomy”  Osgoode Hall Law Journal, Vol 52-3, 955.
- World Health Organization “Malaria” <<https://www.who.int/news-room/fact-sheets/detail/malaria>> (accessed March 25, 2020).
- World Health Organization “How many TB cases and deaths are there” <<https://www.who.int/gho/tb/epidemic/cases_deaths/en/>> (accessed March 25, 2020).