Intellectual property laws are intended to protect innovators from unscrupulous individuals or corporations that scene to coop creativity. According to Georgetown Law School, “Patents are only one of the intellectual property laws written to protect and enforce the rights of creators and owners of inventions, writing, music, design and other works, known as the “intellectual property.”
These intellectual property laws include copyright, trademark, patents, and trade secrets. However, although written with the best of intentions, a struggle is now being waged for and against these patent laws concerning vaccines. How the parties will decide will determine who lives and who dies. It’s no longer a matter of sitting patiently as the final give-and-take is completed. Time is of the essence.
The question, of course, is whether or not there should be some suspension of the law for the benefit of millions who will die if not given a vaccine. In the midst of all of this, we see vaccine highjacking, internet hacking for formulas, and scams offering “vaccines” over the internet.
The result of patent protection, as we await the opinions and the legalese, is death with little question.
Reading the various articles, we cannot forget the classic psychology experiment regarding the man who needed medication for his wife that he couldn’t afford. Laurence Kolberg provided in the classic Heinz dilemma:
A woman was on her deathbed. There was one drug that the doctors thought might save her. It was a form of radium that a druggist in the same town had recently discovered. The drug was expensive to make, but the druggist was charging ten times what the drug cost him to produce. He paid $200 for the radium and charged $2,000 for a small dose of the drug. The sick woman’s husband, Heinz, went to everyone he knew to borrow the money, but he could only get together about $1,000 which is half of what it cost. He told the druggist that his wife was dying and asked him to sell it cheaper or let him pay later. But the druggist said: “No, I discovered the drug and I’m going to make money from it.” So Heinz got desperate and broke into the man’s laboratory to steal the drug for his wife. Should Heinz have broken into the laboratory to steal the drug for his wife? Why or why not?
People in the millions around the world are dying for lack of the vaccine for Covid-19. The United States is said to have millions of doses of the Astra-Zeneca vaccine stockpiled but unreleased.
Thirty million vaccine doses sit in a plant in Ohio awaiting the finish-and-fill process. Tens of millions of doses are in a factory in Baltimore. Fear of unavailability may be holding these precious 40 million doses within the United States.
But now, patent protection is rearing its head. The true intent of the law wasn’t to prevent its distribution but to ensure “a property right that can be licensed, sold, mortgaged or assigned.”
The Vaccine Patent-Protection Arguments
The question remains whether or not it is essential to suspend any intellectual property rights that relate to Covid-19 vaccines. The nexus of this question may be a life-or-death decision for those countries or individuals who cannot afford the vaccine.
The poor, those in distant areas, or who are of an unseen underclass, may be the victims of this lack of altruism in the service of protection of property rights.
A precedent for providing free vaccines was set in 1955 by Dr. Jonas Salk, the polio vaccine developer. Once the vaccine was available, Salk indicated he would seek no patent for it.
When asked why Salk wouldn’t seek patent protection for his discovery and who owned the rights to it, he is said to have replied, “Well, the people I would say. There is no patent. Could you patent the sun?”
A similar instance for providing his vaccine was shown regarding Israel. Salk made available all of his information and his laboratory for an Israeli scientist, Natan Goldblum. Goldblum then took the information and set up a laboratory to manufacture the vaccine in Israel. In 1957, Israel provided vaccines for youngsters there.
In the early 2000s, a treatment for AIDS was distributed free in developing countries, although pharmaceutical companies wished to make it available at market price. Public pressure, as well as government efforts, resulted in its free distribution.
Covid-19 Vaccines’ Quandary
The forces pro and con regarding vaccine availability are now being heard around the world. Some call for the People’s Vaccine approach, similar to what Salk intended, but others hold for pharmaceutical firms’ intellectual rights and patent protection.
Oxfam believes, “To end this pandemic, we need a People’s Vaccine: a patent-free, mass produced, and fairly distributed vaccine available free of charge to everyone, rich and poor alike.” Their belief is that intellectual property concerns prevent the free distribution of vaccines which could, inevitably, lift the pandemic scourge.
The contrary view is whether or not vaccines and their patents should be allowed to depart from any pre-existing laws or rules related to intellectual property rights. Countries such as India and South Africa ask the World Health Organization to waive these rights to help protect their people.
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement is the center of the struggle related to patented technologies related to the production of the Covid-19 vaccine. It is to this body that the suffering countries are appealing for a waiver relative to Covid-19.
It is seen as a struggle between the rich and the poor. Although there have been pledges to offer the vaccine at cost by some companies, prices have varied wildly, going from $2 to $40 per dose.
In light of the current crisis, some ask for a review and potential revision of patents as they relate to vaccines. Pharmaceutical firms do not share this view and see it as a potential conundrum for their continued financial health. Patents have been involved in legal struggles before as in the case of Henrietta Lacks and the development of HeLa, a licensed method for medical research.
What is at issue appears to be the qualification of compulsory licensing to manufacture vaccines.
The components of the TRIPS agreement do have a provision for what is called compulsory licensing for production within a country for its own use.
The TRIPS Agreement does not specifically list the reasons that might be used to justify compulsory licensing. However, the Doha Declaration on TRIPS and Public Health confirms that countries are free to determine the grounds for granting compulsory licences, and to determine what constitutes a national emergency.
Initial efforts to obtain a license for production during an emergency having failed, a company can then apply for compulsory licensing.
The bottom line is that unless we have more millions vaccinated worldwide, the virus will continue to replicate in new variants less susceptible to current vaccines. Worldwide travel will serve as a vehicle of virus transmission.Death tolls will mount, economies will weaken, and the world will suffer as a whole; no country will be spared.
