Matthew M. Kavanagh is director of the Global Health Policy & Politics Initiative at Georgetown University’s O’Neill Institute for National and Global Health Law and assistant professor of international health. Madhavi Sunder is associate dean for International and Graduate Programs and law professor at Georgetown University Law Center.
We must make critical changes now to fix this inequity and avert a public health disaster. Vaccinating everyone around the world is not just a moral imperative. With variants of the novel coronavirus first found in Brazil, South Africa and Britain already spreading in the United States, it is clear global vaccination is necessary to end the pandemic.
At the World Trade Organization on Wednesday, the United States and a small number of wealthy countries with ready access to vaccines blocked a proposal by India and South Africa to temporarily waive countries’ obligation to enforce patents on covid-19 technologies, including vaccines, during the pandemic. The Biden administration should drop its objection, and WTO members should pass the waiver — quickly.
Two decades ago, in the midst of the AIDS crisis, the WTO’s Doha Declaration affirmed intellectual property rules “should not prevent members from taking measures to protect public health.” But the clarification of the right of nations to issue compulsory licenses and make generic medicines came too late: More than 5 million people in low- and middle-income countries died from AIDS waiting for the WTO to clarify its rules.
Now we are in the middle of another global health emergency. Two-thirds of WTO members back waiving patent rules during the pandemic, but the United States and others argue that patents are critical for innovation and are not slowing the global supply of vaccines. Neither is true. First, patents played little, if any, role in stimulating the “warp speed” development of covid-19 vaccines. The Moderna vaccine was almost entirely funded by the U.S. government, with an additional $1 million donated by Dolly Parton. It is inappropriate for a private company to monopolize technology funded by taxpayers. Moderna itself recognizes this, having previously announced that it will not seek to enforce its vaccine patents.
The United States also argues the waiver is unnecessary because countries such as India can already begin producing covid-19 vaccines for their own populations,, and export them to developing countries under existing WTO rules. But the current machinery is cumbersome; implementation may take years. The waiver, however, would allow generic drug companies to begin making and distributing the vaccines as soon as possible.
Finally, the United States and other opponents argue that even if generic drug companies get the patents, there is nobody who can make them. They suggest technology using mRNA underlying some of the new vaccines is so complicated that even respected generic drug companies cannot make the vaccines. This leads us to the next necessary step: tech transfer.
If patent rights are waived, companies around the world, such as Biovac in South Africa or Cipla in India, could rapidly retool their manufacturing capacity to make these vaccines, with experts at the ready to help. But they also need the recipe. While a patent is supposed to explain how to make a product, many of today’s pharmaceutical patent filers intentionally obscure this information. Therefore, the companies making these vaccines should share exactly how they make them.
Sharing technology with low- and middle-income countries is standard practice for many medicines. Gilead Sciences shared technology to help manufacturers based in Egypt, India and Pakistan to make and sell remdesivir as a covid-19 treatment last year; a company co-owned by Pfizer has done the same for HIV drugs. Vaccines are harder to engineer than AIDS drugs, so sharing tech is essential.
Having funded key vaccine development, the U.S. government has the leverage to push companies to open up their vaccines to the world. The World Health Organization has already said it will help with expertise, and companies such as Moderna, Pfizer and Johnson & Johnson could receive royalties on the sales. But what they must not do is block producers in Africa, Asia and Latin America from making lifesaving vaccines and exporting them to their neighbors.
We cannot afford to repeat the mistakes of the past. Just as the AIDS crisis in Africa necessitated the Doha Declaration, the covid-19 pandemic necessitates both a temporary intellectual property waiver from the WTO and a bold effort to share know-how — not in 2024, but now. Indeed, the covid-19 era should change the way we think about patents and public health. Intellectual property rights are not ends in themselves; they are tools to promote human flourishing.
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