Could lifting patents speed up access to life-saving COVID-19 drugs?

Mustaqeem De Gama brought a proposal sponsored by South Africa and India to the World Trade Organization last month that he thinks will speed up access to life-saving, COVID-19 drugs.

De Gama, a South African representative to the WTO, wants the body to waive all patents and intellectual property rights for drugs, technologies and vaccines developed to fight the coronavirus for the duration of the pandemic.

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It would temporarily alter the system, overseen by the WTO, that governs how drug discoveries and scientific knowledge are controlled and shared worldwide. This hasn’t been done before — but the world can’t afford to maintain the status quo right now, De Gama said.

“It is a limited, time-bound exception to the enforcement of intellectual property rights in the interest of public health, in the interest of saving lives, and in the interest of the poorest and those most exposed to the ravages of this virus.”

“It is a limited, time-bound exception to the enforcement of intellectual property rights in the interest of public health, in the interest of saving lives, and in the interest of the poorest and those most exposed to the ravages of this virus,” De Gama said.

Scientists are working around the clock to develop medicines for COVID-19, but De Gama and others worry about a widening gap in access to such drugs and other pandemic necessities around the globe.

Currently, when a company develops a drug, it gets all the rights and controls the price and production for many years. This incentivizes innovation, but De Gama said this monopoly over the terms can delay critical drugs from getting to communities that need them.

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“We need to maximize the production capacity,” he said. “We need to transfer know-how and technology so that we can save lives. We need more people to produce, not less.”

Kenya and Eswatini joined in as co-sponsors of the proposal while several WTO members came out against it, including the US and the EU and Norway — which stated that the current system facilitates critical cooperation and that waiving patents would be a setback. A handful of others were undecided, and the proposal remains under consideration in the coming months.

Avoiding past mistakes

De Gama has seen up close how the global patenting system can fall short in times of need. He still recalls “the pandemonium in our communities” in the late ’90s and early 2000s, when millions of people in Africa died of AIDS in part because they were priced out of access to life-saving drugs.

South African leaders tried to procure a cheaper supply of medicine but were challenged in court. The WTO updated its patenting system to address the crisis, but serious barriers remained, and are amplified during the pandemic, according to Leena Menghaney, head of Doctors Without Borders’ Access to Medicines Campaign in South Asia.

“Intellectual property has been a barrier for masks, intellectual property has been a barrier for reagents for testing, intellectual property has been a barrier for drugs.” 

“Intellectual property has been a barrier for masks, intellectual property has been a barrier for reagents for testing, intellectual property has been a barrier for drugs,” said Menghaney, who is based in Delhi.

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While countries can now override individual patents — she said, and necessary approvals can take years — governments face pressures from pharmaceutical lobbies not to do so.

Access is not just a problem in lower-resourced countries, either, according to Marcela Vieira, coordinator of the Knowledge Network for Innovation and Access to Medicines at the Graduate Institute in Geneva. The US has faced shortages of protective gear like masks and the experimental, COVID-19 drug, remdesivir.

“There are lots of manufacturers that exist, and they are afraid or restrained from manufacturing a number of products because of patent infringement allegations,” Vieira said.

Addressing access challenges 

Some worry access gaps will only grow once an effective vaccine is developed. Oxfam International recently reported that just over half of the supply of leading vaccine candidates is reserved for just 13% of the world’s population. That’s because a small group of wealthy countries, such as the UK and the US, have made advanced purchasing deals.

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Currently, companies themselves can voluntarily lift patents and share their knowledge. Global sharing and development mechanisms have been set up to help facilitate this, such as through medicine patent pools and a new COVID-19 technology accelerator.

Leading NGOs are teaming up directly with companies to work on access issues and secure supplies for lower-income countries. Companies can also make direct agreements with producers and countries. Finally, there is a process for countries to override patents on individual drugs or products.

Prashanth Yadav, a senior fellow at the Center for Global Development and professor at INSEAD in France said an across-the-board waiver on COVID-19 drugs and technologies may wind up being necessary but could backfire as a first response.

“We may end up using an instrument which will be a rather blunt instrument, and that would mean even companies who are willing and have voluntarily set up programs will scale them back.”

“We may end up using an instrument which will be a rather blunt instrument, and that would mean even companies who are willing and have voluntarily set up programs will scale them back,” he said.

That could be a problem if the drug developer has critical expertise in COVID-19 therapies or vaccines and isn’t on board.

But De Gama said the proposal to lift patents is a chance to do something big — and avoid past mistakes.

“I think it’s an uphill effort but given the emergency situation that we face, at some point, there has to be consensus that something more has to be done,” he said.