IP Rights Debate Heats Up As COVID-19 Vaccination Efforts Push Forward - Fordham Intellectual Property, Media & Entertainment Law Journal
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IP Rights Debate Heats Up As COVID-19 Vaccination Efforts Push Forward

IP Rights Debate Heats Up As COVID-19 Vaccination Efforts Push Forward

The rollout of COVID-19 vaccines offers a glimmer of hope after a tumultuous year in 2020. The pandemic has seen almost 2.1 million deaths globally, making countries eager to vaccinate their citizenry.1 However, such efforts have presented their own set of issues. Namely, there is currently an insufficient supply to vaccinate everyone.2 This further raises issues of inequality, with wealthy countries obtaining the resources more readily.3

Many argue that suspending intellectual property (IP) rights for COVID-19 vaccines is necessary to provide widespread access.4 The argument is that products that prevent or treat COVID-19 constitute “global public goods.”5 This approach is not new. For example, when the HIV/AIDS pandemic swept sub-Saharan African at the turn of the century, courses of non-generic drugs, produced and patented by foreign drug companies, were priced at about $10,000 per year.6 This was obviously unattainable for many poorer countries.7 South Africa’s government subsequently spent years attacking the monopolies that pharmaceutical corporations had over their patented drugs.8

Recently, South Africa and India have proposed that the World Trade Organization suspend some of the IP protections for COVID-19 drugs, vaccines, and diagnostic technologies.9 Citing “exceptional circumstances,” the proposal would “exempt member countries from enforcing some patents, trade secrets, or pharmaceutical monopolies under the organization’s agreement on trade-related intellectual property rights, known as TRIPs,” thus allowing companies to produce generic versions of vaccines and treatments.10 Some countries have supported a compulsory licensing approach, which would halt the patent holder’s monopoly over their product.11

However, the proposal has since been consistently opposed by the United States, as well as by the European Union, Britain, Norway, Switzerland, Canada, Japan, Australia, and Brazil.12 Proponents of upholding IP protection argue that such rights are necessary for “facilitating incentives for innovation and competition.”13

Some, including organizations such as Doctors Without Borders, argue that nonenforcement of patents during the pandemic is alone inadequate in ensuring global vaccine access.14 This is because, according to Doctors Without Borders, things like trade secrets and know-how are key elements of vaccine development and manufacturing; so long as they are protected, they “will limit the availability of vaccines all around the world.”15 Accordingly, multiple major pharmaceutical companies, such as AstraZeneca and Johnson & Johnson, have entered into “technology transfer partnerships” and other similar agreements with local companies in low and middle-income countries to develop up to one billion doses of their respective vaccines.16

While the U.S. government has not yet decided to curtail domestic IP protection for COVID-19 drugs and vaccines, we can now only rely on the pledges made by various pharmaceutical companies. Still, how this will affect vaccination efforts on a global scale remains to be seen and will likely continue to be a matter of fierce debate.

  1. Countries Worldwide Look To Acquire The Intellectual Property Rights of COVID-19 Vaccine Makers, Pintas (Jan. 29, 2021), https://pintas-ip.com/countries-worldwide-look-to-acquire-the-intellectual-property-rights-of-covid-19-vaccine-makers/ [https://perma.cc/ZEZ8-WN3L].

  2. Achal Prabhala, Arjun Jayadev, Dean Baker, Want Vaccines Fast? Suspend Intellectual Property Rights, N.Y. Times (Dec. 7, 2020), https://www.nytimes.com/2020/12/07/opinion/covid-vaccines-patents.html?action=click&module=RelatedLinks&pgtype=Article [https://perma.cc/Q477-MGSS].

  3. Carmen Paun, Patent Fight Pits Rich Against Poor in Vaccine Race, Politico (Dec. 10, 2020), https://www.politico.com/newsletters/global-pulse/2020/12/10/patent-fight-pits-rich-against-poor-in-vaccine-race-491105 [https://perma.cc/5HSU-P8BW].

  4. Countries Worldwide Look To Acquire The Intellectual Property Rights of COVID-19 Vaccine Makers, supra note 1.

  5. Id.

  6. Prabhala, Jayadev, Baker, supra note 2.

  7. Id.

  8. Id.

  9. Thomas Cueni, The Risk in Suspending Vaccine Patent Rules, N.Y. Times (Dec. 10, 2020), https://www.nytimes.com/2020/12/10/opinion/coronavirus-vaccine-patents.html [https://perma.cc/MND6-8823].

  10. Prabhala, Jayadev, Baker, supra note 2.

  11. See Countries Worldwide Look To Acquire The Intellectual Property Rights of COVID-19 Vaccine Makers, supra note 1.

  12. Prabhala, Jayadev, Baker, supra note 2.

  13. Id.

  14. Michael Hiltzik, Column: Pfizer, Moderna expect billions in profits from COVID vaccines. That’s a scandal, L.A. Times (Jan. 4, 2021), https://www.latimes.com/business/story/2021-01-04/pfizer-moderna-covid-vaccine-profits [https://perma.cc/5HPZ-TFV3].

  15. Id.

  16. Cueni, supra note 9.

Kirby Shilling

Kirby Shilling is a second-year J.D. candidate at Fordham School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She is also on the Corporate and Financial Law Journal. She earned her B.A. in Classics and Government from Smith College.