“Divisive” comes to mind when describing the global response to the COVID-19 pandemic. Most, if not all, countries are solely looking inwards in the war against coronavirus. Meanwhile, international relations, much less international collaboration, is fracturing amid the chaos of a global battleground where it is unclear whether coronavirus or nationalism is the true enemy. With the question of effective pandemic containment up in the air and escalating economic pressures, the world is looking to viable drug treatments for salvation. Given the current streak of countries taking unilateral actions instead of opting for multilateral cooperation, it is fair to ask whether intellectual property (IP) laws, backed by interests in profits and sentiments of nationalism, will foil efforts to fast-track drug development and provide battered countries with much-needed medical tools.
It is undeniable that intellectual property is indispensable as an incentive that stimulates innovation, and as a result, technological progress. At the same time, IP carries a problematic record of protecting the interests of developed countries and powerful corporations at the expense of poor, undeveloped countries. In recent history, the South African government in 1998 promoted the generic production and sale of critical antiviral drugs for low prices during the HIV/AIDS epidemic. In response, the Clinton administration spearheaded a joint lawsuit with 39 name-brand pharmaceutical companies against South Africa. Given IP’s complicated history and reputation, the question of whether it will further fragment common interests is more relevant than ever. In South Africa, the plaintiffs only dropped the lawsuit after facing immense global criticism. Now, with a pandemic the modern world has never been faced with before, relying on the current model supported by IP laws—that is, on technologies spearheaded by private corporations—may not be enough.
Attack on Big Pharma and IP
International pressure on pharmaceutical companies to voluntarily forfeit IP privileges, at least temporarily, has been consistent and overwhelming. Organizations worldwide have signed an open letter to the World Intellectual Property Organization (WIPO) asking the group and its constituents to support research and development on coronavirus, and to be flexible with IP rights during this period. As a testament to the informal power of the public voice, Gilead, the pharmaceutical company that has garnered attention for its coronavirus drug trials with test-drug remdesivir, recently made a surprising announcement to renounce the orphan drug status granted to the experimental treatment. This designation, which the US Food and Drug Administration (FDA) allocates to drugs targeting rare diseases, would have guaranteed Gilead tax breaks and several years of protection against competition from generic drug production. In addition to the undeniable fact that Coronavirus is by no means a rare disease, the resulting backlash from the public health sector likely pressured Gilead to reject the FDA designation.
In most cases, however, public opinion, and even a united international front, lacks the power of enforcement in reality. When push comes to shove—for access to medical necessities during a pandemic no less—individual government action is the most effective. Caught in the middle of a public health crisis, Israel turned to compulsory licensing, a legal measure allowed by the World Trade Organization (WTO) whereby a country can circumvent IP laws to produce generic versions of patented medication only when facing a public health emergency. Once the Israeli government used compulsory licensing against AbbVie’s patent on an antiviral drug that was at the time believed to be effective against the Coronavirus, AbbVie moved to end patent enforcement on that drug in all countries. Coronavirus does not discriminate against wealthy and impoverished countries: the pandemic is taking a financial toll on all countries. Germany, China, and Chile, among others, followed suit, seeking legal measures to circumvent pharmaceutical patents.
Given the problematic implications of IP on drug pricing and therefore accessibility, it is clear why countries in crisis are opting for unilateral action against IP. The direct attack on IP by breaking patents, however, is at most a short-term solution. The chief executive of Roche, a Swiss multinational healthcare company, has warned that mass disregard for IP laws will disincentivize drug development due to the lack of investment, a perspective that the pharmaceutical industry as a whole shares. Extreme measures can be tolerated during extreme circumstances, but after the crisis, the IP landscape, and how governments navigate it, must change.
No Return to Normalcy
The real problem isn’t with IP itself, but with how entities employ IP. For example, on paper, compulsory licensing is a perfectly legal measure when a country is in the middle of a public health crisis. In the real world, however, patent holders of lifesaving drugs are corporations backed by powerful countries like the USA. Developed countries in the past have supported big pharmaceuticals in pressuring or punishing developing countries that have tried to use compulsory licensing during health crises. Now, these developed countries are the ones leading the pack in exploring licensing options. Ironically, the pandemic has revealed that it’s ok when rich countries break patents to save their citizens, but not when poor countries do so. This hypocrisy, stemming from a lack of responsibility in those who have power, is something to be addressed if countries plan to reevaluate IP usage after the pandemic.
Individuals who call for a temporary emergency patent violation during the pandemic and then a post-pandemic return to normalcy in IP are not only neglecting the more serious problem of corporate and governmental responsibility, but don’t realize that the pandemic may inevitably create changes. The significant volume of countries seeking compulsory licensing measures is evidence of this. According to Ellen ‘t Hoen, an expert in global health at the University of Groningen, the pandemic will lead to renewed interest in addressing the patent issue—an issue of responsibility.
The Post-Pandemic Solution
Tangible change, difficult as it might seem, may not be a far stretch. Despite the fractured political arena, there have been surprising stories of international cooperation on the drug development front. The Costa Rican government has proposed a voluntary patent pool—a collective resource of coronavirus-related technology, research, and data formed from a pooling of different organizations’ IP. The proposed patent pool will enable equal and low cost access to information and technology for poor countries disadvantaged in the fight to eradicate the virus. The specific terms of the patent pool are yet to be decided, but the World Health Organization (WHO) has accepted the proposal, recently including it in the new “Access to COVID-19 Tools Accelerator,” a global collaborative project towards COVID-19 vaccine development.
The hope that a voluntary pool will facilitate international cooperation between countries and pharmaceutical companies is not baseless. Previously, the Medicines Patent Pool (MPP) allowed companies to share IP and licensing for treatments targeting HIV/AIDS, Hepatitis C, and Tuberculosis. The MPP has increased accessibility to these treatments in low-income countries. Similarly, it is possible that the use of a voluntary patent pool during the pandemic will be a step forward away from the status quo.
In the long term, countries might revisit the WHO, WTO, and WIPO’s 2003 plans for negotiating a more sustainable approach to research and development. From previous discussions for this plan, different sources of funding and cooperation is emphasized in order to counter the overreliance on IP and the abuse of IP rights. When the proposal was originally brought up, the USA and the EU vetoed the legislation. In light of recent events, and with growing international cooperation on drug development and accessibility, these initiatives might be more palatable to countries home to pharmaceutical monopolies. Moving forward, collective action—but even more so, collective responsibility—is necessary as the bedrock of an open, global, and post-pandemic world.