Trade academics are backing calls from South African and Indian officials to relax World Trade Organization (WTO) rules on intellectual property, amid concerns over “critical shortages” of Covid-19 medical supplies.
A group of 11 researchers and academics say that WTO restrictions around patents, trade secrets and copyright are preventing companies from sharing knowledge and technology on the production of medical goods, such as personal protective equipment.
“This has led to limited product development worldwide and an inability to expand supply to meet the demand for effective medical technologies,” the group says in an open letter to a WTO council on intellectual property.
“Low and middle-income countries including least developed countries have experienced shortages of medical products, including diagnostics, and are likely to continue to face shortages of new treatments and vaccines as they become available,” says the letter, seen by GTR.
The letter – signed by members of a trade-focused working group at Boston University’s Global Development Policy Center – builds on concerns raised with the WTO in an October statement from the governments of South Africa and India.
That statement gives the example of attempts by US officials to force manufacturing giant 3M to release its patent for N95 respirators, so that other firms could start producing them in the wake of soaring demand.
“There are several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients,” it adds.
In both that statement and the academics’ letter, signatories are calling for the WTO to waive its intellectual property rules temporarily so that more companies can begin producing coronavirus-related medical supplies.
That would allow a scaling up of manufacturing to meet rising demand, they argue, making up for the disproportionate power wielded by nations with greater financial firepower.
“Advanced economies have the purchasing power to buy whatever is out there, and in doing so limit the availability of others to do that,” says Kevin Gallagher, a Boston University professor and director of its Global Development Policy Center.
“That could include ventilators, N95 masks, ingredients in a test kit and potentially the vaccines too,” he tells GTR. “With the vaccine, Pfizer, for example, would have limited production capacity, but reports suggest a small number of advanced economies have already pre-ordered most of what can be procured.”
In that example, a WTO waiver could allow other producers to manufacture doses of the vaccine without being required to adhere to licensing restrictions or costs that are normally by-products of intellectual property rights.
The letter argues that a waiver could be issued under Article 73 of the WTO’s Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, which allows for a temporary suspension of rules during an emergency.
“I understand that normally there might be concerns about the legal precedent of allowing countries to violate a breakthrough patent,” Gallagher says.
“But this crisis is unprecedented, it’s not anyone’s fault, and we just don’t have the purchasing power, the productive capacity and the legal right to be able to produce and distribute what’s needed at the scale and speed that’s needed.”
WTO officials are expected to discuss the proposals during a November 18 TRIPS Council meeting, at which point they could decide to refer it to the organisation’s General Council for a final decision.
However, a waiver alone would only protect companies from state-to-state disputes for breach of WTO rules.
Brook Baker, a professor of law at Northeastern University School of Law and a senior policy analyst at Health GAP, points out that it “would not automatically become operable in any country except those that automatically incorporate international treaties”.
“Almost all countries would have to domesticate or implement the waiver domestically through executive order or legislation as required under national law,” he tells GTR.
Baker adds that patent laws only have effect in the countries where they are granted, meaning measures would have to be taken in every country that wishes to benefit.
“For example, if South Africa were to implement the waiver domestically, it would override any relevant IP protections in South Africa for production in South Africa,” he says.
“However, if South Africa had to import from someplace else, the waiver would have had to be implemented in that country as well or that country would have had to issue compulsory licenses to override IP protections.”