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“Can you patent the sun?” This is the famous expression made by Dr. Jonas Edward Salk – an American virologist more than 60 years ago. The saying is becoming more and more profound today, especially in the context of the raging Covid-19 epidemic and the fact that Covid-19 vaccines could not be mass-produced due to patent problems.
The story of the polio vaccine can be a lesson for the Covid-19 vaccine
Dr. Salk asserts that the vaccines belong to the people and should be distributed to the entire population free of charge, not for profit.
Professor Joan McMeeken – a famous physiotherapist in Melbourne, Australia was one of the first Australian teenagers to be vaccinated against polio in the 1950s. She said that when the first vaccine for polio, developed by Dr. Jonas Salk in the United States, was available in Australia, it has been warmly welcomed by the people.
She shared about the history of battling against polio more than 50 years ago: “They really can’t wait to get their kids vaccinated, especially if they know someone who has had polio. Everyone is happy that the vaccine was finally produced because they had to spend half a century worrying about polio.”
As news of the success of the polio vaccine spread around the world, the father of that vaccine was faced with questions about intellectual property rights and the patents for his vaccine. Dr. Salk’s answer was later published in newspapers on every edge of the planet:
“Who owns the vaccine patent? Everyone. There’s no such thing as a patent. Do you hold the sun’s patent?”
More than 60 years have passed since Dr. Salk expressed his point of view on the vaccine problem, but as the world continues to grapple with the coronavirus pandemic, important questions are raised again about the role of intellectual property rights in vaccines development.
Uses of vaccine patents
Vaccine patents are created to prevent competitors from copying a pharmaceutical company’s work and mass-producing similar products. In the US and Australia, patents in the field of pharmaceuticals are generally valid for 20 years from the date of successful issuance.
Manufacturers of vaccines apply for patent protection because the vaccine will generate high profits for them. However, this is reasonable. It took them a decade or more of development to be able to successfully research a vaccine for a dangerous disease in the world. Therefore, it is not uncommon for them to want to benefit from their hard work and investment. According to a study by The Washington Post, on average, to be able to develop a vaccine for a new disease will require an amount of money between $521 million and $2.1 billion (The number varies because it depends on the complexity of the diseases, the companies and the countries research and develops vaccines).
Taking a decade to develop and put the drug into use, companies typically enjoy around 10+ years of uncompetitive sales. Furthermore, they will try to improve and expand the use even after the product has been released. Therefore, the manufacturer applies for additional patents and maintains a monopoly in the market for many more years.
Do Covid-19 patents need to exist?
“Covid-19 patents are essential for the development of the economy.” Dr. Nikolai Petrovsky of the Flinders College of Medicine and Public Health, who is currently researching at the vaccine development company Vaxine in Adelaide.
Since the 9/11 attack, his company has attracted funding from the US government to research and develop a vaccine in the wake of the anthrax epidemic. Since then, their patented vaccine research method has been used in vaccine development projects in response to outbreaks of other diseases including swine flu, Ebola, and MERS.
Dr. Nikolai Petrovsky said that being able to protect intellectual property has helped the company in the research process economically and the development of vaccines. “The reason we have a patent is to reward the effort of every member involved in the research and production of a new technology to develop a new technology,” he said. We’ve been developing our vaccine for 20 years now and have invested over $50 million in the process.”
“It wouldn’t be fair if we invested 20 years of effort and all that money and then released a new vaccine with benefits which other pharmaceutical companies don’t have. Then someone can come up with a drug that mimics our product a week later and has the potential to push us out of the market.”
In Australia, standard patents on a device, substance, method or process last for 20 years and allow the patent holder to use it commercially for that time.
Dr. Petrovsky said being able to patent new versions of vaccines serves as a driving force for innovation in the economy. His company has developed a vaccine for the Covid-19 pandemic called COVAX-19. This vaccine has been contracted overseas and is undergoing clinical trials 2 and 3.
Should Covid-19 patents belong to the people?
However, La Trobe University associate professor of public health Deborah Gleeson who represents Australia’s Public Health Association, said that the global health crisis caused by COVID-19 has highlighted the dark side of intellectual property rights.
At the end of last year, the Doctors Without Borders Médecins Sans Frontières said that an estimated six projects leading research into a COVID-19 vaccine had received $12 billion in public funding during the pandemic. So, should vaccine companies limit competition by holding on to vaccine patents when public funds make up a large part of the vaccine’s research and development process?
As such, according to Gleeson, the idea that patents allow vaccine companies to remain economically viable is not necessarily correct. “That logic doesn’t hold in the context of a pandemic,” she said.
The government and people have supported a large amount of money for the research and development of COVID-19 vaccines and other products to fight the pandemic. So, is it fair that the vaccine is not owned by the people?
Movements of countries on the issue of Covid-19 vaccine patents
The Australian Public Health Association and the Doctors Without Borders Australia have written a letter calling on the federal government to support a proposal not to patent a Covid-19 vaccine.
Two decades ago, the WTO approved temporary patent exemptions to allow poor countries to import cheap generic drugs to treat HIV, tuberculosis, and malaria amid a health crisis.
Since last October, India and South Africa have also led the idea of giving up intellectual property rights around products fighting the Covid-19 pandemic through the International Trade Organization (WTO). The declaration received the support of more than 100 member countries.
The administration of President Joe Biden has come under tremendous pressure from both parties to provide more vaccines to the rest of the world. Recently, on May 5, US Trade Representative – Ms. Katherine Tai said that the US government supports the exemption of intellectual property rights related to Covid-19 vaccines.
ASL LAW is the top-tier Vietnam law firm for Intellectual Property Services in Vietnam. If you need any advice, please contact us for further information or collaboration.
