SA seeks to trigger waivers to temporarily suspend patent laws to produce COVID-19 vaccines

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South Africa remains at the forefront of efforts at the World Trade Organisation to trigger waivers that would temporarily suspend patent laws that are limiting the global production of COVID-19 vaccines and other medical products.

Initiated in October by South Africa and India, the move has now seen more than 100 countries, including China, support the effort to apply waivers to parts of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights known as TRIPS.

This could pave the way for developing countries to produce vaccines and other products more readily, but in a consensus-driven organisation like the WTO, nothing is as simple as it seems.

The joint effort led by the two Brics countries calls on WTO members to work together to ensure that intellectual property rights such as patents, industrial design, copyright and protection of undisclosed information do not create barriers to the timely access of affordable medical products to combat COVID-19.

With support for this effort coming from President Cyril Ramaphosa. “To fight the pandemic, we need to pool resources, capabilities, our knowledge and intellectual property. Another important step is to enable the transfer of medical technology for the duration of the pandemic,”  says President Ramaphosa.

But the WTO process has dragged on for almost five months already due to opposition from European countries, the United States and other developed nations that argue the waivers would stifle innovation by robbing pharmaceutical companies that make huge investments in research and development.

An issue incoming Director-General of the WTO Dr Ngozi Okonjo-Iweala sought to address.

“Some member countries, mainly from developing countries is that the idea of intellectual property constraints should be waived completely so that any member can manufacture. Others are saying wait a minute, we invested a lot of money or companies did. If you do that there’d be no encouragement and what I’m saying is let’s not spend … as we spend time in these arguments, people are dying; we are not getting the vaccines. There is a way which is a compromise in the middle which private sector companies are already doing. They are licensing companies in developing countries to produce and manufacture these vaccines and these drugs and one of the biggest problems we have is just a sheer manufacturing constraint in the world.”

Aspen and J&J

There is evidence of collaboration within the private sector. Already South Africa’s Aspen Pharmcare is working with Johnson and Johnson to produce their yet-to-be approved vaccine.

AstraZeneca has licensed the Serum Institute of India, while similar agreements have been reached by pharma companies in Germany and elsewhere.

“The pharmaceutical companies are doing it now. We should encourage them. AstraZenca licensed the Serum Institute of India to produce a billion doses and it is licensing in other countries. It’s licensing companies, I believe, in Mexico, Thailand … it’s looking for more and more place. Ditto with Johnson and Johnson was doing contract manufacturing and now, I understand they are also willing to also do licenses, which transfers a lot more of the knowledge than you would have in contract manufacturing.”

SABC’ Sherwin Bryce-Pease speaks to World Trade Organisation Director-General: 

But despite this, UN Chief Antonio Guterres has slammed the inequity of vaccine distribution globally.

“At this critical moment, vaccine equity is the biggest moral test before the global community. We must ensure that everybody, everywhere, can be vaccinated as soon as possible. Yet progress on vaccinations has been wildly uneven and unfair. Just 10 countries have administered 75% of all COVID-19 vaccines. Meanwhile, more than 130 countries have not received a single dose.”

Given this posture, we asked the SG’s Spokesperson Stephane Dujarric if Guterres backed efforts led by South Africa and India at the WTO.

“Those are decisions that are going to have to be taken by the member states of WTO. I think any move that will facilitate the distribution and access to vaccines will be welcomed. Obviously, there are issues of rights and law that need to be respected but the details of how that works out will be up to the WTO.”

Richer countries argue that any Intellectual Property Waivers should only be contemplated when current flexibilities within the WTO rules prove to be inadequate.

Dr Okonjo-Iweala says, “The WTO rules which talk about the TRIPS agreement, talks about intellectual property and how there can be flexibilities during a public health emergency, to enable countries to manufacture medicine and make them affordable, as South Africa did with the HIV AIDS drugs. So, right now, countries or members are talking about what do they do with these flexibilities in these times of urgency.”

A lack of consensus at the WTO could be the swift death knell to efforts to remove blockages that could potentially speed up vaccine production and distribution around the world.