Vaccine patent waiver: the best of a bad deal

In the end it was a decision that pleased no-one. For that reason alone, maybe it was the most that anyone could ask for.

After two years of debate, the 164 states of the World Trade Organization (WTO) finally agreed a limited Covid-19 driven waiver on certain intellectual property rights in talks that dragged on into the night.

It was far short of what campaigners wanted — only temporary (for the next five years), covering only vaccines (though a decision on other Covid treatments or therapies is due within six months), and only by eligible countries, whoever they might be. They argue that profit-driven pharma companies – often funded in part with public money – treat countries and patients in a way that is inequitable and based on what makes them more money and that more dramatic action was required.

But it was also seen as a signal blow by the pharmaceuticals industry, which argued that it had shown its ability to deliver to all markets in record time and was aware that any compromise undermined its traditional position of strength.

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The trouble for the campaigners is that there is substance to the pharma industry argument that it is impossible to ring-fence profit on successful therapies. Those profits must also pay for the many failed drug projects, or else the companies behind them would not be around for the successes that benefit patients around the world.

Campaigners have a one-eyed view of Big Pharma but the industry also has a curiously blinkered view of itself.

It has a history of hiding the findings of adverse clinical trials, of gouging on price, of largely ignoring diseases that primarily affect the developing world and of what might best be called patent “management” – minor reformulation of products to extend their patent protection.

More importantly, as an industry, it has been anything other than transparent on finances. Largely funded by public health systems globally, it has made no real effort to address the notion of fair margin. These are very grey areas.

The WTO works on the basis of unanimity. Getting any agreement on compromise is a tortuous process, one that has threatened the group’s very existence. Securing a full patent waiver on Covid-19 therapies, or even something wider, was never really achievable. But this first step is a foot in the door.

It may be too late for Covid-19 vaccines, given that there is currently a glut on the market, so any waiver is more theoretical than practical. But there will be another health crisis and, having agreed the concept once, the expectation is that it should be more readily forthcoming earlier in the process next time around, and possibly extended in scope.