FEBRUARY 25 — We refer to Prof Jomo Kwame Sundaram’s articles attacking the intellectual property (IP) system which have been published in local and international media over the last few months, including ‘Intellectual property monopolies block vaccine access’ (14/12/2020), ‘2021: The Year of living dangerously?’ (04/01/2021), ‘Caught in a tangled web of vaccine nationalism’ (02/02/2021), and ‘Intellectual property cause of death, genocide’ (09/02/2021).
It is unfortunate that Prof Jomo has decided to use the word genocide in the most recent of these as it is improper and has clearly been chosen to provoke an emotional response rather than promoting constructive discussion. Genocide is deliberate targeting of a nationality or ethnic group with the intention of elimination. There is no evidence to support a claim that any group has been deliberately targeted for elimination by IP owners.
The primary thrust of Prof Jomo’s articles is that developing countries are losing out on vaccines due to vaccine nationalism and restrictive IP laws. He indicates the latter are founded in the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), and in order to address these a number of countries have proposed a waiver of several sections of TRIPS, namely section 1 (copyright), 4 (industrial designs), 5 (patents) and 7 (protection of undisclosed information i.e. trade secrets).
At this point it should be noted that there are different types of IP and in light of the waiver request, the focus is really on patents, which are the primary mechanism for protecting inventions such as pharmaceutical drugs and vaccines. It is also important to note that the specific implementation of TRIPS is through national laws, so even if a waiver was approved by the WTO, each country would still need to codify any changes required to their respective legislation.
The opponents to the waiver indicate that TRIPS already contains sufficient measures to address any IP restrictions [e.g. Article 31 TRIPS], including compulsory licensing and government overrides for emergency use. The latter in particular, which often seems to be ignored by proponents, allows the government of a developing country to grant a licence to make a pharmaceutical product without the patent owner’s consent. Thus if a patent is claimed to be a barrier to manufacturing a product in a particular country, it is relatively straightforward for a government to override that patent, subject to political will.
It seems that the opponents to the waiver are concerned that suspending entire sections of the TRIPS agreement goes too far, and may have significant adverse effects. It is like using a sledgehammer to crack a nut.
For example, consider what would happen if there was no IP in light of the pandemic. A pharmaceutical company may still decide to produce a vaccine but there would be no requirement to share any information about how they made it so the pharmaceutical company would be able to hold everyone to ransom until someone else figured out how to make it, delaying vaccination and increasing deaths. If there was a second pandemic, everyone would have to start development from scratch as third party information from the first pandemic would not be available, leading to increased deaths. There would be no incentive for the pharmaceutical company to supply vaccines or information to anyone else as they would have no control over their invention. As a result both developed and less developed countries would be worse off as they would not have access to the information that the IP system forces innovators to provide.
In contrast, a number of pharmaceutical compounds which have been safety tested in relation to other diseases are now being mined to determine if they can also be used against Covid19. Some, such as remdesivir for example, would perhaps not have existed and would not now be available so quickly to treat Covid19 if were not for the incentives provided by the patent system.
On the proposal to suspend the provisions relating to the protection of undisclosed information, the release of trade secrets seems to be more akin to corporate espionage, and therefore may not be viewed favourably. A pharmaceutical company would be less likely to reveal useful knowhow and expertise if their trade secrets are going to be publicly disclosed outside of their control.
As such there is a real danger that if the proposed waiver was implemented, it could have a chilling effect on the availability of useful information and further vaccine development which could end up prolonging future pandemics.
Nevertheless, there is some perhaps justified criticism that the aforementioned government override only allows licensing for ‘predominantly domestic use’ [Article 31(f) TRIPS], so in order to allow manufacture for export to a country without manufacturing capabilities a compulsory licence is currently needed, for which the procedures are more complex.
As such suspension of Article 31(f) TRIPS may be more viable as it is focused and therefore may be more palatable to the member countries, and should be straightforward to implement as it is unlikely to require significant changes (if at all) to national laws. This should provide greater freedom to allow countries with manufacturing capabilities to make and export products to countries without such capabilities.
Prof Jomo also states that ‘everyone knows the IP system discourages, rather than encourages cooperation and sharing’. However it is a condition of grant for a patent that an explanation of how the invention works is published (usually after 18 months, which is why most current patent applications directed to Covid19 are not yet available to the public, a fact Prof Jomo has omitted). A patent then has to be examined and accepted by a country’s patent office before it can be enforced in that country.
As a patent has a limited lifespan, technological progress is made as the patent holder only has the right to enforce their patent in exchange for revealing how their invention works, and thus new inventions can be developed from the old. It therefore clear to most people that patents stimulate innovation and are important for attracting investment. There are of course some issues in certain countries, and indeed it seems that most of the highlighted concerns stem from patent trolls, which are predominantly found in the US due to the way litigation is practiced there. However, you should not replace a car because of a puncture, and likewise with IP the way forward is to fix the problematic laws to discourage unwanted activities.
It is thus clear that the IP system is not the main hindrance to the provision of vaccines, and in fact is more likely to be beneficial to enhanced development thereof. While the intentions of the proposed waiver are commendable, we do not believe that it would help significantly in its current form and may cause more harm than good in the long term. In addition it seems perverse to attack the IP rights of pharmaceutical companies and others, by saying they are causing death, when they are the very people that are contributing to saving lives.
As Prof Jomo has stated previously, ‘the main challenge then is fiscal’ and therefore perhaps efforts should be refocused on how to address wealth inequality, political will and vaccine nationalism, rather than biting the hand that feeds.
* Dr Chris Hemingway is Chair of Patents Committee, Malaysian Intellectual Property Association (MIPA), Petaling Jaya, representing IP practitioners, owners and users for 30 years.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
