Patent monopoly over COVID vaccines is a cruel business

If the United States is sincere in its decision to back a proposed waiver for COVID-19 vaccine intellectual property rights, it is certainly good news. India, along with South Africa, is leading the campaign to release COVID-19 vaccines from companies that have patented their vaccines.

The US decision to agree to a temporary waiver was followed by France and New Zealand. The European Union and Spain prefer more discussions. Unless 140 WTO members agree on this draft, and none exercises their veto power, the decision may not be finalised. The waiver will help countries like Canada, Bangladesh and South Korea to make vaccines, as rightly observed by Prof K Srinath Reddy, president of Public Health Foundation of India.

The observation that a waiver will be of no use is incorrect. It will open space for rapid production of COVID vaccines and states might encourage emergency use authorisations for medicines. Such exemptions were given to Pfizer, Moderna, AstraZeneca, Novavax, Johnson & Johnson and Bharat Biotech. Middle-income countries such as India must concentrate on rapid production of vaccines with necessary financial support so that dependence on superpowers is reduced.

Also read: India needs more than patent waivers to deliver more COVID vaccines

After completely vaccinating their populations, developed countries are looking to sell vaccines to other countries. The US was financing vaccine makers in 2020 with around $2 billion and arranged for procurement of more than the required number of doses. This exemption should also extend to life-saving drugs, other medicines, and nutraceuticals to tackle the dreadful virus.

Prime Minister Narendra Modi should have taken measures to increase the production capacity of the vaccine makers in India. He would have not faced criticism had he facilitated more-than-required production before exporting 6.4 crore doses abroad.

The meritorious part of a patenting system is that knowledge used for production of an innovative drug will be known to all, which would boost further research to invent more effective vaccines at lower cost. In return, the inventor is permitted to have a 10-year monopoly over commercial gains from the product. But some experts believe that more than the 10-year monopoly, the offer of prize fund to innovators will help everyone to have the benefit of science and research, at least in pharmaceuticals.

Also read: COVID-19: More support easing vaccine patent rules, but hurdles remain

While a waiver is a global requirement, the Indian government should use compulsory licensing clauses to increase vaccine production, assigning work to all vaccine makers in the country. To incentivise research, firms should be given a prize fund rather than allowed a monopoly over production and distribution.

India initially allowed only process patenting, a simple policy that helped the phenomenal growth of our pharma industry. India succumbed to international pressure and switched to product patenting too. Before that, India successfully fought the AIDS disease with its own vaccines and medicines. But in the last one year, we are struggling with the pandemic.

Prof Srinath Reddy questions criticism of the quality of production in countries like India. “Between 1972 and 2005, India had adopted process patenting rather than product patenting, and built up a huge generic industry. If western companies are interested in contracting Indian companies for manufacturing their vaccines in India, then how can they say you do not have the quality to produce on your own?”

However, this exemption itself does not work if production is massively increased and distributed with equity. It is unfortunate that 83 per cent of vaccine stocks are with rich countries having 50 per cent of the world population. This means they are going to dictate the economics through vaccine. Every democratic nation should take up the task of distributing vaccines at minimum cost, giving only working margin to producers.

The Indian Council of Medical Research (ICMR) is contributing to the knowhow of the vaccine produced by Bharat Biotech for a 5 per cent royalty, while Serum Institute of India has an agreement with Oxford University. Since the public sector company is the inventor, it is easy for the government to negotiate with all vaccine producers in India to maximise production. It can also offer incentives and financial support to increase their capacity. They should help Bharat Biotech and SII to double production, besides roping in all other vaccine makers. With this the government can also counter the criticism that it is unduly favouring one or two vaccine makers.

Besides tackling the crisis of access to medicine, our efforts to waive patents and, wherever these are not exempted, resort to compulsory licensing will also help the economy. The state should thus retain its role and control over the process of production, distribution and pricing of vaccines and medicines.

It is not proper for the state to leave it to the private sector to decide the pricing of the vaccine. The state can offer all sorts of incentives to developers and producers. The differentiation between the Centre and states and then public and private is unconstitutional and violates equity and equality principles.

If the Centre wants to take over 50 per cent of the vaccines made in India, it must bear the 50 per cent of the burden of vaccinating the entire country and facilitate states to complete the rest with the same pricing. Allowing companies to sell a 50 per cent quantum at any price to anybody does not help develop a humane policy. Centralisation of vaccine collection and distribution besides privatisation of vaccine pricing process will prove disastrous to both the health and finances of the society.

Right now states do not know when they will get stocks. The Centre has a constitutional obligation to provide access to states and the people in general to vaccines and medicines to prevent the spread of contagious diseases like COVID-19.

Besides, it is a gross violation of the equality principle under Article 14 to make people in states pay more for a vaccine even as those who get it from the Centre pay less. For instance, why should people in states and those who do not have the scope of getting a subsidised COVID vaccine pay more than ₹400 per dose?

If a person dies because of inaccessibility to medicine or poverty, the whole world must hang its head in shame. Surprisingly, in India, most people are dying not of COVID but due to lack of oxygen or beds or ventilators. Even after death, they await a decent cremation or burial. It is a clear proof of lack of governance.