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Patenting A Crisis?

Why should the world suffer the ravages of a pandemic when we have vaccines that can mitigate a lot of the suffering? Admittedly, they are not perfect, but they cut the risk of severe disease and hospitalisation by a considerable degree.  Currently, the disparity in vaccine distribution is striking- on the one hand, we have a country like Israel which is planning a second booster shot, while large parts of Africa are completely unvaccinated. The situation is even more skewed when it comes to the anti-viral pills that have been developed. It is extremely unlikely that these will be available anytime soon for developing countries.

 Why should the profits of a handful of companies override the needs of tens of millions of people across the world? As Omicron threatens to sweep across the world, the question of vaccine equity needs to be urgently addressed.

The current approach of the developed world has been an insular one. They have focused on protecting themselves. The problem is that, as Omicron has shown, new variants of the virus are capable of developing immune-evading properties, thereby defeating the idea that any one nation no matter how well endowed with vaccines, can focus solely on self-protection. The important thing is to subdue the circulation of the virus in the first place, so that it has fewer opportunities to mutate into even more destructive versions. This is where vaccine equity becomes vital- not only as an act of humanity, but as a self-serving way to gain meaningful protection. What is coming in the way is the fact that the most effective vaccines are controlled by a very few companies.

In a situation as dire as this, should there not be an overriding mandate that prioritises the lives of billions over the profits of a tiny number of corporations? This question can be examined from two frames- one from within the logic of a market economy, and the other from a broader philosophical perspective.

It could be argued that the companies that have developed these vaccines have the right to the profits that flow out as a consequence. They are entitled to maximise the commercial opportunity that the pandemic represents. It is not fair to look at the vaccine in isolation- they spend billions of dollars in the development of new drugs, only a fraction of which become commercially viable. What looks like a bonanza in a particular case needs to be set off against the many drugs that failed to reach the market despite the huge expense incurred in basic R&D.

There are several counterarguments that can be made but in this case, what stands out is that the US government shared the risk. Given that the vaccines have been developed with the help of significant public sector funding, and that too at a time when there were no guarantees that the vaccine would work, meant that the government was in effect a venture capitalist, taking a gamble on a positive outcome. The risk that the state took needs to be rewarded disproportionately, as it is in any other similar case. The US government would be within its rights to insist that the vaccine be made available widely across the world as a form of compensation.

Would waiving off IP rights of these companies in such exceptional circumstances help?  Epidemiologists across the world believe that there is a compelling case for doing so. Omicron might just be a harbinger of things to come. We might have been a bit lucky with this variant, although it is too soon to aver that. Still, the next variant could be even more transmissible, more virulent and evade immunity even more efficiently.

The critics of IP waiver believe that it isn’t as if there are that many manufacturers with the capability and quality standards to manufacture vaccines, particularly the mRNA ones, which seem to be most effective. Also, they argue that compulsory licensing ‘may reduce their interest in pursuing the voluntary horizontal collaboration that are already driving scale’ as one think-tank analyst puts it.

The first argument is self-defeating. If indeed there aren’t enough manufacturers with the ability to produce these vaccines, then the originating companies have nothing to fear by opening up the IP restrictions. But it is the second argument that unless the financial interests of corporations are met, they ‘lose interest’ in doing the right thing, that needs to be understood and addressed.

For what is in effect being argued, unless the hunger for super-normal profits (which is what is currently being generated) is satiated, corporations will prefer to have millions of people dying and that as a society, we are fine with that. To normalise the logic of a patent regime to this extent is to take markets outside the purview of society, basic ethical constructs and humanity itself. It is also self-defeating since giving time to a mutating and evolving virus to develop into an unstoppable lethal killing machine would eventually destroy everyone, the companies in question and the people manning them as well.

All the arguments that are marshalled against the idea of a patent waiver or compulsory licensing begin with the premise that the companies themselves would be unwilling participants in any such venture. This is what is truly baffling. Why should a corporation as a structure, made entirely out of human elements and serving a human purpose be so utterly impervious to human needs of the most pressing kind?

The problem is not really about these specific companies. We have created a system where almost any corporation would act in a similar fashion. Beyond the legal arguments that can be made and the ideological positions that one might hold about the need for free markets, there comes a time when the human imperative outweighs all other considerations. Covid is one such extraordinary event. This calls for a show of ordinary compassion and humanity. Nothing more.