The global race to patent a COVID-19 vaccine

While people are facing the greatest public health crisis, the world's largest economies are in a fierce competition to be the first to develop a COVID-19 vaccine and ensure its accessibility to their citizens. Quite evidently, the mysterious virus has introduced a whole new global race - the race to win exclusive patent rights to a Covid-19 vaccine.

Patents are a form of intellectual property rights providing creators of new inventions, such as vaccines and medicines, with limited term monopoly over those inventions. During this period, the patent holders own exclusive rights to manufacture and sell their inventions or can choose to licence it to others to do the same. Usually, research and development for a single vaccine, drug or diagnostic test costs billions of dollars, but patents help the inventor to recoup their costs and provide an incentive to invent or innovate. The licences include a specified time limit and geographical area to exploit the patent. In exchange, the patent holder receives royalties and/or licence fees. To sum up, the desperate search to find a COVID-19 cure is not just about saving lives but about owning the patent rights and monopolising the vaccines to make huge profits.

Currently, there is no vaccine to protect against COVID-19 but many pharmaceutical and biotechnology companies in the United States, China and Europe are optimistic about producing successful treatments. Although, Europe has already assured that if they are the first to discover a vaccine, it will be licensed around the world. Contrarily, the United States and China have been engaged in a trade war since 2018 because of China's lack of enforcement of intellectual property rights to non-chinese citizens. Therefore, both countries have responded to this pandemic with strong nationalist sentiments. The political tension between the two countries has already affected the way their laboratories would have otherwise cooperated to invent a COVID-19 antiviral.

Remdesivir, a nucleoside analogue prodrug, is patented by an American pharmaceutical laboratory named Gilead Sciences. It was first developed to treat Ebola which, after proved to be ineffective for that purpose, was discovered by Gilead that Remdesivir could be effective at mitigating coronaviruses including COVID-19. When Gilead donated Remdesivir to Chinese hospitals in response to covid-19 outbreak to test its effectiveness, the Wuhan Institute of Virology in China ("Wuhan Institute"), filed a competing method of using patent instead, that involves using Remdesivir with Chloroquine (a common malaria antiviral). Gilead deliberated that if the Wuhan Institute wanted, they could have approached them for licensing Remdesivir or, apply their "compulsory licensing" statutes similar to those of the Trade Related Aspects of Intellectual Property Rights (TRIPS) to impel a licence, in case their licensing request was denied. Rather unsurprisingly, the Wuhan Institute filed a patent for using Remdesivir, which portrayed nothing but a defensive measure to secure access to Remdesivir in China and lower possible licensing fees they might owe Gilead for using it.

This defensive patent filing will not only initiate a deeper mistrust between America and China but other foreign laboratories like Johnson & Johnson, CureVac, GlaxoSmithKline, Moderna, Sanofi etc. may become reluctant to test their vaccine in China, thinking that their intellectual property rights will not be protected.

Currently, about 80 groups around the world are researching on COVID-19 vaccines and some are entering clinical trials. How will this new kind of space race to patent a vaccine affect Bangladesh in terms of accessibility and price?

Section 22 of the Patents and Designs Act 1911 allows any person to present a petition to the Government to grant compulsory licence, alleging that demand for a patented drug in Bangladesh is not adequately met and on reasonable terms. Compulsory licensing is a process by which a government licences companies or individuals besides the patent owner to make, sell or import a product under patent, without the patent owner's permission. However, Article 66 of TRIPS Agreement grants all Least Developed Countries a waiver till 2033, permitting the production of pharmaceutical products which are still on patent. This means, if a COVID-19 vaccine is patented by some other country, it will not enjoy patent protection in Bangladesh. Therefore, Bangladesh can produce a COVID-19 vaccine at a low cost without requiring to invoke compulsory licenses. 

China, now in their phase-2 clinical trials, has assured Bangladesh to receive priority in terms of cooperation and support if they can successfully produce a vaccine. Led by the European Union, a virtual summit was held on 4 May, where world leaders from more than 30 countries including the United Nations and the World Health Organisation, called for international efforts to make COVID-19 vaccine a global public good. Conversely, America disassociated itself from such a cause to rather support - Vaccine for Americans first, while the rest can queue up to pay the patented drug.

So, who will win the race? Definitely, not someone who invents first. A true winner will be the one who will view their invention as a public necessity rather than business profiteering. When the inventor of polio vaccine, Jonas Salk, was asked who owned the patent, he responded: "Well, the people, I would say. There is no patent. Could you patent the sun?" 

The writer is a Lecturer at the Department of Law, North South University.