How patent law and corporate profits keep variants crawling the globe
Eight months after the Biden administration said it supports lifting international patent rules on COVID-19 vaccines, it still has not delivered a patent waiver, even as the omicron variant spreads faster than any previous strain of the deadly virus.
While 61% of U.S. residents are fully vaccinated and many people are getting third booster shots, most poorer countries will not reach the same vaccination rate until 2024.
Recognizing this inequity and the danger it creates for the entire world, in October 2020, India and South Africa put forward a proposal to suspend key intellectual property rules so that countries without wealth could still access cheaper, generic versions of COVID-19 vaccines and treatments.
The rules come via the World Trade Organization and are part of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. TRIPS governs patents globally.
The U.S. trade representative put out a statement in May calling for increased global access to vaccines and recognizing the importance of the United States in making sure that happens.
But the statement fails to specifically mention the South Africa-India proposal and only makes vague reference to a theoretical waiver. It does not specify a counterproposal that the U.S. would offer at the WTO.
Numerous groups from across the country and around the world are asking the Biden administration to rethink its position on vaccine patents, including progressives in Congress, Doctors Without Borders, Amnesty International, Human Rights Watch and Speak Up Africa.
Advocates say the White House could be using its power to pressure WTO member states to lift the patents but is choosing not to. A summary of a closed-door WTO meeting on Nov. 29 reported by In These Times shows that the U.S. declined to take robust action to pressure its allies and advance an intellectual property waiver.
Millions ask Biden to support waiver
Noël Hutton is an organizer with the Community Alliance for Global Justice. She moved to Taos, New Mexico at the beginning of the pandemic.
Up until the discovery of the omicron variant, the Biden administration’s position on the waiver has been “relatively weak,” she said.
“They are not using their full capacity to actually push for the waiver even if they, in theory, support it,” she said.
In April, more than half of the House Democratic caucus, including New Mexico Rep. Teresa Leger Fernández, sent the Biden administration a letter signed by nearly two million people asking for support for the waiver.
Leger Fernández signed the letter after meeting virtually with Hutton and a group from the alliance.
“We must make vaccines, testing, and treatments available everywhere if we are going to crush the virus anywhere,” the letter states.
Neither Leger Fernandez nor any member of Congress responded to Source New Mexico’s requests for comment on the vaccine patent waiver or the South Africa-India proposal specifically. Written requests for comment from Fernandez’s office along with Rep. Melanie Stansbury, Rep. Yvette Herrell and Sen. Ben Ray Luján went unanswered.
Aaron Morales, a spokesperson for Sen. Martin Heinrich, responded but did not offer any comments on the record.
The omicron variant is demonstrating once again that the COVID pandemic will not end anywhere until vaccines, test kits and treatments are readily available throughout the world, public health experts and policymakers said at a Dec. 16 news conference.
Rep. Jan Schakowsky (D-Illinois), the lead sponsor of the End the Pandemic Now resolution, said part of the resistance from large pharmaceutical companies is a racist myth that low- and middle-income countries are unable to manufacture COVID-19 vaccines.
In fact, AccessIBSA and Doctors Without Borders on Dec. 10 compiled a list of over 120 companies in Africa, Asia and Latin America with the potential to produce mRNA vaccines to fight COVID-19, if only the vaccine patents were waived.
“Developing countries have been producing high-quality vaccines for decades and decades and decades, some of the highest quality, most high-tech plants in the world are in developing countries,” said Arthur Stamoulis, executive director of the Citizens Trade Campaign. “They know how to do this, they just don’t have the permission to do so. And that’s what we’re trying to achieve.”
Omicron derails meeting about patent waiver
Every two years, the trade ministers from the WTO’s member states are supposed to meet. They haven’t met since 2017, and the pandemic has twice postponed a meeting slated for 2020.
This year, the meeting was scheduled for Nov. 12 in Geneva, Switzerland, but it was again delayed, now by the omicron variant.
The main thing that the trade ministers were set to hear was what they could do to contribute to ending the pandemic and promoting a just recovery for everyone, said Deborah James, director of International Programs at the Center for Economic and Policy Research and coordinator of the global Our World Is Not for Sale network.
“This week should have been the week where they said, ‘OK after a year of not going anywhere, we’re gonna finally do what we need to do to get the WTO out of the way of resolving the pandemic,’” James said.
The TRIPS agreement prevents countries from being able to scale up production of treatments, diagnostics, vaccines and medical products needed to resolve the pandemic, she said. The only real response from WTO would be to waive those artificially imposed constraints, she said, so that countries can actually have the freedom to scale up production.
Rich countries including the U.S., the European Union, U.K., Switzerland, Japan, Norway, Canada, Australia and Brazil have so far blocked the overwhelming majority of WTO members who want to see the waiver. Those advocates have been predicting for a year-and-a-half that if we don’t vaccinate everyone, there’s going to be variants that come back and devastate not only people in poorer countries, but rich countries, too.
Vaccines developed with public money
David Scrase, New Mexico’s acting health secretary, said state officials have not yet discussed the waiver with the Biden administration, but he would bring it to the attention of Gov. Michelle Lujan Grisham. They work very well with the White House, he said.
He was speaking at a news conference earlier this month that briefly touched on the omicron variant, but at that point, it would still be two more weeks before the first confirmed case of omicron was identified in New Mexico.
“There’s no question that the pandemic will keep going until the world is vaccinated,” Scrase said.
He added that the state is dedicated to equity in care for New Mexicans, and that racial and socio-economic disparities in public health systems “need to be corrected.”
Scrase pointed out that a drug company like Pfizer or Moderna spends “hundreds and hundreds of millions of dollars to develop a vaccine, figuring that over the course of 10 years, that investment will pay off.”
“If they lose that exclusive patent, I guess my main concern would be, what would their response be during the next pandemic, or their willingness to make an investment to produce really anything?” he said. “I’m not bringing the other side up to advocate for it. I’m not a little advocate for drug companies in general. But the way the economics of this works, for any company to develop any new product, they develop a spreadsheet with seven years of expected returns. And so I would worry about future motivations.”
But Hutton points out that research and development for these lifesaving technologies was largely publicly funded.
In fact, while Pfizer itself has not taken public money directly, BioNTech, with which it co-developed the vaccine, received the equivalent of $422 million from the German government and the equivalent of $112 million in debt financing from the European Union.
And U.S. agencies committed about $2.5 billion to help develop Moderna’s vaccine and buy doses, according to the New York Times.
“Though many might argue that these pharmaceutical companies took a financial risk for which they ought to be rewarded, that is simply not the case,” Hutton said. “It is absurd to socialize costs only to privatize the rewards.”
Hutton said intellectual property has a role in protecting small businesses, artists and creators, but vaccine patents are just one of many examples where intellectual property creates corporate monopolies over actual public interest.
“Knowledge is often only more fruitful when it is shared, especially when it comes to life-saving medicine,” she said. “Is public health really about private profit, or is it about the protection of life?”
In the week after South Africa announced the emergence of the omicron variant, the top eight Pfizer and Moderna shareholders added a combined $10.3 billion to their fortunes.
“With the recent spike in cases in New Mexico, I hope that we here will also recognize that the global is local,” Hutton said. “The safety of our communities here depends also on the safety of our relatives across the world.”