What’s patent law got to do with it…?

Popes do it, US Presidents do it, Even educated fleas do it, Let’s do it, Let’s suspend patent laws. (apologies to Cole Porter)

First, identify the problem.

What is preventing developing countries from getting access to Covid vaccines? Is it (a) a shortage of manufacturing capacity, or (b) national barriers to export (hoarding), e.g. by the European Union, USA and India? If the former, (c) can capacity be increased by existing manufacturers, or (d) can stocks be diverted by existing manufacturers without breaching contracts, or (e) do there need to be more manufacturers? The recent calls for suspension of patent laws seem to assume that (e) is the issue.

Next, identify the solution.

If there need to be more manufacturers, what is stopping them from springing up? Is it (f) a lack of commercial opportunity, or (g) a lack of the necessary skills to manufacture, or (h) that they need to receive know-how (technology transfer) from the developers of the vaccine, or (i) a fear of being sued for patent infringement?

If it is primarily a fear of being sued, is this fear (j) unjustified, and can be fixed by reassurance or public statements from the vaccine developers, or (k) justified?

If there is a fear of being sued for patent infringement, and that fear is justified, (l) have existing laws and policies that provide waivers from patent infringement been implemented? For example, (m) where development of the vaccine received public funding, do the terms of that funding allow the funder to exercise “step-in rights” (which is common in the USA and UK) to license others to make the vaccine, and have those rights been exercised? Alternatively, (n) do existing, national patent laws already provide for waivers or compulsory licences (e.g. sections 48-54, UK Patents Act 1977), and have those laws been implemented? At an international level, (o) are there laws that enable developing countries to get access to vaccines, and have they been implemented?

If the primary reason why more quantities of vaccine are not being manufactured is a justified fear of being sued for patent infringement, and none of these existing laws and policies mentioned above adequately address the issue, (p) will a revision in the rules of the World Trade Organisation’s TRIPS agreement solve the problem?

If the answer to question (p) is yes, then by all means go ahead.

In all other scenarios, the proposal to suspend patent laws is ill-informed b****cks, by people who should know better.

Podcast of this article here.