By Prabir Purkayastha, the founding editor of Newsclick.in, a digital media platform and an activist for science and the Free Software movement. Produced in partnership by Newsclick and Globetrotter, a project of the Independent Media Institute
Donald Trump launched a new vaccine war in May, but not against the virus. It was against the world. The United States and the UK were the only two holdouts in the World Health Assembly from the declaration that vaccines and medicines for COVID-19 should be available as public goods, and not under exclusive patent rights. The United States explicitly disassociated itself from the patent pool call, talking instead of “the critical role that intellectual property plays”—in other words, patents for vaccines and medicines. Having badly botched his COVID-19 response, Trump is trying to redeem his electoral fortunes in the November elections this year by promising an early vaccine. The 2020 version of Trump’s “Make America Great Again” slogan is shaping up to be, essentially, “vaccines for us”—but the rest of the world will have to queue up and pay what big pharma asks, as they will hold the patents.
In contrast, all other countries agreed with the Costa Rican proposal in the World Health Assembly that there should be a patent pool for all COVID-19 vaccines and medicines. President Xi said that Chinese vaccines would be available as a public good, a view also shared by European Union leaders. Among the 10 candidate vaccines in Phase 1 and 2 of clinical trials, the Chinese have five, the United States has three, and the UK and Germany have one each.
Trump has given an ultimatum to the World Health Organization (WHO) with a permanent withdrawal of funds if it does not mend its ways in 30 days. In sharp contrast, in the World Health Assembly (the highest decision-making body of the WHO), almost all countries, including close allies of the United States, rallied behind the WHO. The failure of the United States Centers for Disease Control and Prevention (CDC) against COVID-19, with nearly four times the annual budget of the WHO, is visible to the world. The CDC failed to provide a successful test for SARS-CoV-2 in the critical months of February and March, while ignoring the WHO’s successful test kitsthat were distributed to 120 countries.
Trump has yet to hold his administration and the CDC responsible for this criminal bungling. This, more than any other failure, is the reason that the U.S. numbers for COVID-19 are now more than 1.5 million and about a third of all global infections. Contrast this with China, the first to face an unknown epidemic, stopping it at 82,000 infections, and the amazing results that countries such as Vietnam and South Korea have produced.
One issue is now looming large over the COVID-19 pandemic. If we do not address the intellectual property rights issue in this pandemic, we are likely to see a repeat of the AIDS tragedy. People died for 10 years (1994-2004) as patented AIDS medicine was priced at $10,000 to $15,000 for a year’s supply, far beyond their reach. Finally, patent laws in India allowed people to get AIDS medicine at less than a dollar a day, or $350 for a year’s supply. Today, 80 percent of the world’s AIDS medicine comes from India. For big pharma, profits trumped lives, and they will continue to do so, COVID or no COVID, unless we change the world.
Most countries have compulsory licensing provisions that will allow them to break patents in case of epidemics or health emergencies. Even the WTO, after a bitter fight, accepted in its Doha Declaration (2001) that countries, in a health emergency, have the right to allow any company to manufacture a patented drug without the patent holder’s permission, and even import it from other countries.
Why is it, then, that countries are unable to break patents, even if there are provisions in their laws and in the TRIPS Agreement? The answer is their fear of U.S. sanctions against them. Every year, the U.S. Office of the United States Trade Representative (USTR) issues a Special 301 Report that it has used to threaten trade sanctions against any country that tries to compulsorily license any patented product. India figures prominentlyin this report year after year, for daring to issue a compulsory license in 2012 to Natco for nexavar, a cancer drug Bayer was selling for more than $65,000 a year. Marijn Dekkers, the CEO of Bayer, was quoted widely that this was “theft,” and “We did not develop this medicine for Indians… We developed it for Western patients who can afford it.”
This leaves unanswered how many people even in the affluent West can afford a $65,000 bill for an illness. But there is no question that a bill of this magnitude is a death sentence for anybody but the super-rich in countries like India. Though a number of other drugs were under also consideration for compulsory licensing at that time, India has not exercised this provision again after receiving U.S. threats.
It is the fear that countries can break patents using their compulsory licensing powers that led to proposals for patent pooling. The argument was that since many of these diseases do not affect rich countries, big pharma should either let go of their patents to such patent pools, or philanthropic capital should fund the development of new drugs for this pool. Facing the pandemic of COVID-19, it is this idea of patent pooling that emerged in the recent World Health Assembly, WHA-73. All countries supported this proposal, barring the United States and its loyal camp follower, the UK. The United States also entered its disagreement on the final WHA resolution, being the lone objector to patent pooling of COVID-19 medicines and vaccines, noting “the critical role that intellectual property plays in incentivizing the development of new and improved health products.”
While patent pooling is welcome if no other measure is available, it also makes it appear as if countries have no other recourse apart from the charity of big capital. What this hides, as charity always does, is that people and countries have legitimate rights even under TRIPS to break patents under conditions of an epidemic or a health emergency.
The United States, which screams murder if a compulsory license is issued by any country, has no such compunction when its own interests are threatened. During the anthrax scare in 2001, the U.S. Secretary of Health issued a threat to Bayer under “eminent domain for patents” for licensing the anthrax-treatment drug ciprofloxacin to other manufacturers. Bayer folded, and agreed to supply the quantity at a price that the U.S. government had set. And without a whimper. Yes, this is the same Bayer that considers India as a “thief” for issuing a compulsory license!
The vaccination for COVID-19 might need to be repeated each year, as we still do not know the duration of its protection. It is unlikely that a vaccine against SARS-CoV-2 will provide a lifetime immunity like the smallpox vaccine. Unlike AIDS, where the patient numbers were smaller and were unfortunately stigmatized in different ways, COVID-19 is a visible threat for everyone. Any attempt to hold people and governments to ransom on COVID-19 vaccines or medicines could see the collapse of the entire patent edifice of TRIPS that big pharma backed by the United States and major EU countries have built. That is why the more clever in the capitalist world have moved toward a voluntary patent pool for potential COVID-19 medicines and vaccines. A voluntary patent pool means that companies or institutions holding patents on medicines—such as remdesivir—or vaccines would voluntarily hand them over to such a pool. The terms and conditions of such a handover, meaning at concessional rates, or for only for certain regions, are still not clear—leading to criticism that a voluntary patent pool is not a substitute for declaring that all such medicines and vaccines should be declared global public goods during the COVID-19 pandemic.
Unlike clever capital, Trump’s response to the COVID-19 vaccine is to thuggishly bully his way through. He believes that with the unlimited money that the United States is now willing to put into the vaccine efforts, it will either beat everybody else to the winning post, or buy the company that is successful. If this strategy succeeds, he can then use “his” COVID-19 vaccine as a new instrument of global power. It is the United States that will then decide which countries get the vaccine (and for how much), and which ones don’t.
Trump does not believe in a rule-based global order, even if the rules are biased in favor of the rich. He is walking out of various arms control agreements and has crippled the WTO. He believes that the United States, as the biggest economy and the most powerful military power, should have the untrammeled right to dictate to all countries. Threats of bombing and invasions can be combined with illegal unilateral sanctions; and the latest weapon in his imaginary arsenal is withholding vaccines.
Trump’s little problem is that the days of the United States being a sole global hegemon passed decades ago. The United States has shown itself as a fumbling giant and its epidemic response shambolic. It has been unable to provide virus tests to its people in time, and failed to stop the epidemic through containment/mitigation measures, which a number of other countries have done.
China and the EU have already agreed that any vaccine developed by them will be regarded as a public good. Even without that, once a medicine or a vaccine is known to be successful, any country with a reasonable scientific infrastructure can replicate the medicine or the vaccine, and manufacture it locally. India in particular has one of the largest generic drug and vaccine manufacturing capacities in the world. What prevents India, or any country for that matter, from manufacturing COVID-19 vaccines or drugs once they are developed—only the empty threat of a failed hegemon on breaking patents?