About the Author: Ellen’t hoen is the director of Medicines Law & Policy, a group of legal and policy experts providing advice to international organizations and governments. She is the founder and former executive director of the Medicines Patent Pool
It is a time of missed opportunities. Trade ministers were due to meet this week at the 12th Ministerial Conference of the World Trade Organization in Geneva, Switzerland. The meeting was postponed due to the alarming emergence of the Omicron variant. The delay and lack of action so far shows how much the world needs creativity and flexibility in our responses to the current global inequality in access to countermeasures in the event of a pandemic. He created fertile conditions for new variants.
A little further from the WTO, health ministers will meet virtually this week at the World Health Organization for a special session of the World Health Assembly. Both forums intended to discuss pandemic inequalities, and both forums will seek solutions to the refusal of many pharmaceutical companies to share intellectual property and manufacturing know-how. The WTO Ministerial Conference was due to take a decision on the proposed waiver of intellectual property protection for the duration of the pandemic, as was proposed over a year ago by South Africa and India. The special session of the World Health Assembly is tasked with deciding on a new set of global health rules to better prepare for the next pandemic.
The Covid-19 pandemic has shown that there are important areas that urgently need regulation before a health crisis strikes. In particular, the world needs rules to ensure that pandemic countermeasures such as vaccines become global commons. This is not done by promises alone, as we have seen. This requires new rules on the sharing of know-how and intellectual property and sufficient funding for research and development of these products. Sorting out in the midst of a global health crisis has turned out to be the wrong approach, so wrong that the WHO Director-General has called it a “catastrophic moral failure”. In addition, the reach of health ministers alone has its limits, as there are key intellectual property and trade issues that âbelongâ to the WTO.
Now imagine if the ministers of health and trade decided to meet in the same room. They could find solutions to the problems that have led to serious inequalities in access to vaccines and other tools needed to respond to the pandemic. What could they accomplish? Here are some suggestions.
Countries should be allowed to waive their obligation under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights to grant and enforce certain intellectual property rights, such as licences. This is the proposal made in October 2020 by South Africa and India and supported by more than 120 countries. This is also possible under Article 73 of the TRIPS Agreement. But we must not stop there:
Ministers should agree that pandemic countermeasures and the knowledge needed to produce them are global public goods or common goods. And that, therefore, in the event of a pandemic, the intellectual property rights, including trade secrets, data and know-how, necessary to produce and supply vaccines, therapeutics and all other countermeasures in force. pandemic cases will be shared or otherwise made available through mandatory action.
Ministers are expected to agree that the innovations needed to prevent and respond to a pandemic outbreak must be available for licensing and technology transfer, especially when publicly funded. This should be done by countries committing to imposing conditions on public R&D funding that require funding recipients to license the resulting technology and share the resulting know-how on a non-exclusive basis. Governments also use advance purchase agreements to reduce the risks associated with the development of new products by committing to purchase a certain quantity of a product that is still in development. These agreements should also be subject to such licensing and technology transfer conditions.
Intellectual property sharing agreements must be concluded in the form of global, transparent and royalty-free licenses with the Medicines Patent Pool and the Covid-19 Technology Access Pool. The first such license was announced last week.
To ensure that there is a sustainable vaccine production capacity in every region of the world, ministers should also commit to providing funding to expand the production capacity of pandemic countermeasures in currently underserved regions. This is particularly important for sub-Saharan Africa, where vaccine production is virtually non-existent. The technology transfer centers that WHO and the Medicines Patent Pool are establishing to share mRNA vaccine technology are a step in the right direction, but capacity building is needed.
Of course, anything that our hypothetical Joint Ministerial Meeting can agree on should not undermine the flexibility that countries currently have in intellectual property law under the TRIPS Agreement and the Doha Declaration of 2001 on the TRIPS Agreement and Public Health. Ministers are expected to agree to facilitate the use of flexibilities included in TRIPS, such as compulsory patent licenses. For example, they should drop the requirement that a compulsory license be primarily intended for supplying the domestic market so that products intended to prevent or respond to a pandemic and manufactured under a compulsory license can be freely marketed beyond borders.
They should further clarify that nothing in the TRIPS Agreement precludes members from taking action to access or transfer know-how, data and trade secrets.
Ministers are also expected to stipulate that future bilateral or regional trade agreements will protect members’ right to implement the results of the joint meeting of health and trade ministers.
Of course, it is unlikely that health and commerce will spontaneously organize such a meeting. But that doesn’t take away from the fact that securing access to intellectual property and manufacturing know-how is crucial to delivering on the promise that pandemic vaccines, treatments and other countermeasures will be global public goods. . Perhaps it is time for the United Nations to deal with it.
Guest comments like this are written by authors outside of the Barron’s and MarketWatch newsroom. They reflect the views and opinions of the authors. Submit comments and other comments to [email protected].