Sharp Disagreement Over Intellectual Property at WHO Pandemic Treaty Consultation
Protestors during the height of the COVID pandemic.

Sharp disagreements emerged about the role of intellectual property (IP) during a pandemic at a panel convened by the World Health Organization (WHO) Intergovernmental Negotiating Body (INB), which is charged with developing a pandemic treaty.

Komal Kalha, associate director of IP at the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA), insisted that the fast production of COVID-19 vaccines had rested on “incentives”, particularly IP protection.

“I am yet to understand and see the evidence of how IP has been a barrier in all of this. In fact, it’s been a facilitator,” Kalha told the informal consultation on IP, production, transfer of technology and know-how on Friday.

Komal Kalha, associate director of IP at the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA)

However, other expert panellists disagreed, pointing specifically to big pharma’s refusal to share its IP, technology and know-how with the mRNA hub established in South Africa by the World Health Organization (WHO) to train people from low-and middle-income countries to make mRNA vaccines.

“The work on the mRNA hub that is that is taking place today is so crucial, but we have to recognise that collaboration from the industry from the [mRNA COVID-19 vaccine patent] rights holders, in particular from Moderna, has not happened and that would have accelerated the development of the technology enormously,” said Ellen ‘t Hoen, Director of Medicines Law and Policy at the University of Groningen in Netherlands.

For pandemic countermeasures, particularly vaccines, to become public goods “will require robust funding mechanisms and predictable and solid mechanisms for the sharing of the knowledge, the know-how, the technology and the IP that is developed with those funding mechanisms,” she added.

Dr Carlos Correa, executive director of South Centre, said that “several companies in Canada, Bangladesh and elsewhere” had also made requests to pharmaceutical companies for technology transfer, but were not given this. In addition, developed countries had “defended the interests of their companies to protect against the transfer of this technology” as well as “any kind of TRIPS waiver that would have allowed countries to make use of this technology”.

Correa said that the wording in the current draft of the pandemic treaty about tech transfer was “very weak”, and he suggested the INB follow the example of the UN Framework Convention on Climate Change, which contains “concrete words about an obligation to transfer technology”.

Government investment in R&D

Richard Hatchett, CEPI CEO

There was widespread support for greater government investment in the research and development (R&D) of medical products to ensure better access to life-saving measures during pandemics.

Richard Hatchett, CEO of the Coalition for Epidemic Preparedness Innovations (CEPI), said his organisation was “the only R&D funder that linked its investment to global equitable access and commitments to perform tech transfers”.

As the INB develops its “zero draft” of the pandemic treaty, Hatchett urged it to use the provisions CEPI has developed to create norms for countries where “equity is at the centre of all aspects of pandemic prevention, preparedness and response”.

He added that, politically, vaccine nationalism was to be expected – and the best way to counter it was through geographically diversified manufacturing capacity.

“The root cause of inequity is scarcity. And whenever there is scarcity, those who have the means to do so, will secure the resources that they need and others will be left behind,” said Hatchett.

“The way to respond to future pandemics is to reduce the time during which access to countermeasures is characterised mainly by scarcity. The structural, geographic roots of scarcity are the concentration of production capacity in a few highly populated regions. So if you want to succeed, you have to have more geographically diversified production.”

Piecemeal tech transfer offers little help

Padmashree Sampath, the chairperson of the technical advisory group of the COVID-19 Technology Access Pool (CTAP), said the lack of technology transfer during the COVID-19 pandemic had hindered the global response.

“There’s no reason why we ended up with two vaccine companies supplying the entire global community with COVID-19 vaccines,” said Sampath. “Are we trying to say that there’s no other company globally that could have produced it? No, it’s access to technology.”

She also argued that the piecemeal transfer of technology was of little help in building capacity in underdeveloped regions.

“We share with [companies] one or the other technology related to one product and they have some investments in the production of that product. But they don’t have enough resources in terms of access to technology to diversify their technological base,” said Sampath, who is also senior advisor of the global access in action program at Harvard’s Berkman Klein Center.

“What we really need to do is start thinking about technology transfer in a broader sense. How do we make technology platforms available? How do we make related technology baskets available to firms in developing countries?”

Her solutions included expanding WHO hubs to develop expertise in a wide range of health interventions, “new mechanisms such as patent buy-outs, and more compulsory ways to force technologies that have been publicly funded to be shared”. 

“I want to draw our attention to how the pandemic treaty can support regionalization and regional and national ownership of technology when what we have today is a handful of multilateral initiatives,” she stressed.

Local incentives

Moji Adeyeye, Director-General of Nigeria’s National Agency for Food and Drug Administration and Control (NAFDAC), appealed for incentives to assist local manufacturing.

“If there is something that can be needled into this treaty, it is that because the development of vaccines is a risky business and local manufacturers are not incentivized. There will not be development.”

Martin Allchurch, head of international affairs at the European Medicines Agency, appealed for the treaty to encourage and facilitate regulators to work together.

“One of the things COVID-19 has taught all regulators is that no one single agency, no matter how big you are, can do by themselves. So reliance is super important,” said Allchurch.

WHO Chief Scientist Dr Soumya Swaminathan

The WHO’s Chief Scientist, Dr Soumya Swaminathan, advocated for the pandemic treaty to be accompanied by a trade accord negotiated at the World Trade Organisation (WTO) “which addresses, not just IP and technology transfer issues, but a broader range of trade issues and supply chain issues, which were very, very critical, especially in the early days of the pandemic”.

The discussion was the third of four informal consultations planned before the INB reconvenes in December to negotiate a draft agreement to be presented to member states. The first focused on legal issues and the second on equity. The fourth, on 14 October, will consider “One Health”.

Image Credits: Aishwarya Tendolkar.

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