In recent months, the global media has revealed how Pfizer reportedly demanded governments in COVID-afflicted Argentina and Brazil put up state assets, such as military bases and bank guarantees, as collateral against any potential legal action concerning its vaccine.
Aside from seeking a safety net against civil lawsuits, senior figures from both countries explained that the pharmaceutical giant was also seeking guarantees against any potential suits for damages caused by negligence, fraud or malice on the company’s part.
This is just one extreme example of the almost unlimited power allegedly in the hands of the few in private companies and businesspeople running the vaccine companies.
As shown by the situation in vaccinated and reopened Israel, and, in contrast, the harsh situation in unvaccinated India and the many European countries still enduring restrictions – vaccines are the key to exiting lockdown and for lessening the rate of infection. As a result, the vaccine manufacturers have a lot of power in their hands.
These are private companies that not only hold the key to the lives and well-being of hundreds of millions of people globally, but also have a big impact on economies and the stability of regimes.
The rules of the free market are clear: Companies invested in research and development for the vaccines, registered patents and are now negotiating with countries to maximize their profits. They deserve to set the terms and prices, and the deals are closed according to the rules of supply and demand, and the considerations of the companies. For instance, poor countries are at an obvious disadvantage compared to wealthy nations.
In an op-ed published last week in The New York Times, World Health Organization Director General Dr. Tedros Adhanom Ghebreyesus estimated that the citizens of low-income countries worldwide have received only 0.3 percent of available COVID-19 vaccines, while the populations of high- and upper-middle-income countries received 81 percent of available doses.
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The unlimited power of private firms, the glaring inequality among nations and worsening of the pandemic worldwide raise serious questions: Should free market rules be applied even during a pandemic that threatens the lives of millions of people? Is there no place during such a time of emergency to change the patent laws and expand vaccine production so they can reach more people around the globe, including in low-income countries, at prices that won’t destroy their economies?
The question about protecting vaccine patents is gathering momentum around the world, especially in the United States. There is a growing movement calling for lifting or waiving patents, so that any manufacturer who wants to produce the vaccines can do so. Vaccine manufacturers are being accused of greed and “vaccine apartheid.”
Last weekend, Sen. Bernie Sanders called on U.S. President Joe Biden to support the international effort to suspend patent protections for COVID-19 vaccines, arguing that they are artificially restricting the world supply of vaccines and preventing citizens of poor countries from gaining access to a life-saving product.
There is growing public support in America for Sanders’ position: A petition signed by some 2 million people was sent to Biden, urging him to back a temporary patent waiver for the vaccines. And opinion polls show that 60 percent of Biden voters support a move to remove obstacles for generic drug makers seeking to manufacture COVID vaccines worldwide.
On the other side of the fence is Bill Gates, who supports increasing poor countries’ accessibility to the vaccines. However, Gates, the great global philanthropist whose businesses are based on intellectual property laws, argues that it’s a bad idea to waive patent protections for producers of COVID-19 vaccines and share their formulas with the world for the sake of achieving a dramatic rise in their production and distribution.
Asked on Britain’s Sky News last weekend whether he thought it would be useful to share the vaccines, Gates answered in the negative. He argued that increased vaccine supply is not being prevented by restrictions on intellectual property, but is instead a technical matter: That there’s a limited number of vaccine-manufacturing plants, and that the safety of the manufacturing process is of utmost importance.
He added that it was not surprising that wealthy countries such as the United States and Britain had vaccinated their people first, but he believed that vaccines would also reach all countries severely hit by the pandemic within three to four months.
Gates’ remarks were slammed by activists and international coalitions urging the temporary waiving of patent protections. One activist famously remarked about how "Billionaire Bill Gates" appeared to have personally appointed himself as the world health czar.
A possible solution
Dr. Ron Tomer, co-CEO of Unipharm, a generic drug manufacturer, and president of the Israeli manufacturers’ trade group, believes the vaccine shortage stems from production limits, not patent restrictions. He feels that while patents were exploited and monopolized for purposes that prevented good health, and would support waiving patents if greater means of production were available, the shortage of vaccines was not due to monopolies or prices.
Tomer believes the main problem is a lack of manufacturing plants internationally and not that plants are sitting idly. “All existing plants are working at nearly full capacity,” he said.
He thought the best solution was not the waiving of patents but for an independent global organization to set reasonable royalty commissions, and then anyone interested in rights to a patent could pay those royalties. “This is a solution that’s appropriate for life-saving medications, and certainly after the companies that developed the vaccines have already made a nice profit,” Tomer said.
Tal Band, a senior attorney at the S. Horowitz and Co. law firm and head of its intellectual property department (which represents Teva, among others), offered similar observations. He thought the exploitation of medical patents was nothing new, but wasn’t convinced that the problem regarding availability of COVID-19 vaccines was due to intellectual property issues. Instead, he too pointed to the limited number of manufacturing plants.
Band thought that even if intellectual property protections were waived, potential producers would not necessarily be found, suggesting that the knowledge involved in production goes beyond that which has been patented.
He also thought a royalty system could provide a logical answer to the issue rather than the outright waiving of patents. “A new balance must be struck,” he said, “but I don’t think negating all compensation to patent holders while seizing their rights is a necessary step.”
Band added that Israeli law allows for a state institution to produce a vaccine in violation of a patent, in exchange for royalties paid to the patent’s owner. This was a political decision that could be made in cases where another vaccine manufacturing capability existed, he said.