India and South Africa propose no patents on COVID-19 medicines and tools during the pandemic

Governments make request to WTO for intellectual property waiver for all countries until herd immunity is reached

NEW YORK/GENEVA, OCTOBER 7, 2020—In a landmark move on October 2, India and South Africa asked the World Trade Organization (WTO) to allow all countries to choose to not grant or enforce any patents and other intellectual property (IP) related to COVID-19 drugs, vaccines, and diagnostics for the duration of the pandemic. Waiving some requirements of international trade agreements would allow generic and biosimilar manufacturers to immediately make more affordable versions of these products without waiting years or decades for pharmaceutical patents to expire. If approved, the decision could signal a major turning point in countries’ response to the pandemic and truly put people’s needs before pharmaceutical companies’ profits, according to the international medical humanitarian organization Doctors Without Borders/Médecins Sans Frontières (MSF).

In today’s global emergency, MSF is calling on all governments to support this waiver request at the WTO, which is holding a Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) Council meeting on October 15 to start building consensus on the issue. WTO’s TRIPS agreement—which entered into effect in 1995—allows governments to issue “compulsory licenses” on a case-by-case basis to override patents in the interest of public health. South Africa and India’s bold ask on COVID-19 aligns with what governments did nearly 20 years ago to increase access to affordable generic HIV/AIDS medicines, which saved countless lives.

“A global pandemic is no time for business-as-usual, and there is no place for patents or corporate profiteering as long as the world is faced with the threat of COVID-19,” said Leena Menghaney, South Asia head of MSF’s Access Campaign. “During the pandemic, treatment providers and governments have had to grapple with intellectual property barriers to essential products such as masks, ventilator valves, and reagents for testing kits. With this bold action, India and South Africa have shown that governments want to be back in the driver’s seat when it comes to ensuring all people can have access to needed COVID-19 medical products, medicines, and vaccines—so that more lives can be saved.”

WTO member countries can seek a waiver from certain obligations in WTO treaties under exceptional circumstances. If members agree on the waiver, countries can choose not to grant or enforce IP—patents, industrial designs, copyright, and trade secrets—related to all COVID-19 medical tools until global herd immunity is achieved. Everyone, everywhere should have access to any medicines, vaccines, and diagnostics to fight COVID-19 since the pandemic won’t end until it ends for everyone.

So far, pharmaceutical corporations and other manufacturers of products needed to combat COVID-19 have not shown any willingness to take a different approach during the pandemic to ensure the necessary broad access to needed products, including in countries where MSF works. Instead, they insist on selling to the highest bidder. We have already seen wealthier countries buy up certain COVID-19 supplies and medications, leaving less or none for people living in low-resource settings.

For example, Gilead, the patent holder on remdesivir, the only drug so far approved specifically to treat COVID-19, has licensed it in a manner that excludes nearly half of the world’s population from benefiting from price-lowering generic competition on the drug. In June 2020, Gilead announced that remdesivir would be priced at $2,340 for a five-day treatment course in most countries. This pricing comes despite the corporation receiving more than $70 million in public funding to develop it while pricing research shows it can be manufactured for less than $9 per treatment course. Meanwhile, shortages for remdesivir have been globally widespread. In June, the US bought up almost the entire supply of remdesivir for the next several months.

Additionally, emerging biologic medicines, including repurposed and new anti-viral monoclonal antibodies currently in COVID-19 clinical trials, are under patent protection in many developing countries such as Brazil, South Africa, India, Indonesia, China, and Malaysia. This means that if these therapeutics show clear efficacy, production and supply by multiple manufacturers in different countries would be blocked unless governments take early actions to remove such barriers. 

Furthermore, there has been an astonishing number of patents filed for COVID-19 vaccines in development, including more than 100 for the mRNA platform technology being used by Moderna to develop a vaccine. Contrary to common disinformation that patents are less of a problem for vaccine access—propagated by pharmaceutical lobby groups—MSF has documented the chilling effect of patents in hindering the introduction of affordable vaccines in developing countries, looking at the pneumonia and human papillomavirus vaccines as examples.

“We urge all governments to support this lifesaving move by India and South Africa to make sure human lives are prioritized and countries can tackle this pandemic by scaling up every COVID-19 medical tool that exists,” said Candice Sehoma, MSF Access Campaign’s advocacy officer in South Africa. “Nobody can afford to let corporations that have been supported by billions in publicly-funded research money to simply pursue their bottom-line interests without regard to global COVID-19 needs. This pandemic will not be over until it’s over for everyone.”