The Complexities of Patent Sharing During a Pandemic

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS, helps patent holders protect and enforce their IP rights worldwide. With COVID-19 continuing to threaten the globe, some nations (including the US) have voiced their support for waiving TRIPS in extreme circumstances like this one. The question of how to eliminate the barrier of IP rights to the implementation of lifesaving technologies—without eliminating the incentive to innovate—does not have a straightforward answer. 

The WTO has been trying to answer this question for decades. As a response to the AIDS epidemic, the organization implemented compulsory licensing for “medicines, vaccines and diagnostics” necessary for treating people during an epidemic. This caveat within TRIPS is similar to standard essential patents (SEPs) and like SEPs, does not always work as intended. In the case of pharmaceutical products, patents are only one obstacle to equitable medical treatment worldwide. Manufacturing and distributing these products require large amounts of resources, including facilities, equipment, raw materials, other supplies, knowledge, and manpower. 

While not as essential to global wellbeing, it should be noted that during the race to engineer COVID vaccines, it’s likely the pharmaceutical companies against TRIPS waivers infringed on one another’s patents. Scientists must be free to innovate quickly and without fear of later legal repercussions in these situations as well. 

With future epidemics and pandemics as well as chronic conditions like diabetes and cancer in mind, the world—especially wealthy, innovation-rich countries—must address the question of equitable access to lifesaving products with a more permanent answer. And how do governments encourage innovation while still protecting the health of the world’s citizens—no matter where they live? 

Thus far, voluntary patent sharing has not worked. The WHO’s COVID-19 technology access pool (C-TAP) has received little support from governments or businesses with the ability to make an impact. As put in a March 2021 New York Times article, “Not a single vaccine company has signed up.” This leaves legal agreements, whether from the WTO, public and private funding sources, or individual federal governments, as potential options. Time will tell if world powers are able to find a balance between innovation and global health in the face of pandemics.