Yet it is unlikely that this is how the pandemic will happen. While there is every reason to believe that treatments for the coronavirus may soon be available, the mere fact of their existence does not guarantee that people will be able to access them. In fact, Covid-19 is more likely to end the same way every pandemic ends: treatments and vaccines will be buried in a thicket of patents – and pharmaceutical companies will ultimately decide who lives and who dies.
We generally consider monopolies, where companies exercise exclusive control over a product, as market failures that can be corrected by antitrust laws. Medical patents are the equivalent of legalized monopolies. In theory, patents are supposed to give pharmaceutical companies a reward for their investments in research and development. Above all, they are supposed to be temporary and last 20 years. But in practice, patenting minor changes to a formula can significantly extend that time, excluding competition in the market and giving pharmaceutical companies the power to set prices.
In 1996, treatment for HIV / AIDS was brought to the market in the United States by a group of pharmaceutical companies. The treatment, a combination of antiretroviral drugs, turned a virus that was a death sentence into a chronic illness. he the annual price was £ 6,500 per person – in most parts of the world this price was the same in practice as the lack of treatment. It was not until 2004, after millions of people died of the disease, that India and South Africa could afford treatment.
We have already seen how medical monopolies have restricted access to treatment for coronaviruses. We know, for example, that health workers don’t have enough N95 respirators; what is less well known is that 3M has over 400 respiratory protection patents, severely restricting who can produce and supply them in the United States. Politicians have called on 3M to publish its patents during the pandemic so that production can be increased. In the midst of an acute shortage of tests for Covid-19, a French diagnostic manufacturer has submitted a test kit to the US FDA for emergency approval in order to sell it in the country, and was sued for patent infringement by a subsidiary of Softbank (which was later withdrawn).
And most of the promising treatments for coronaviruses that are tested in clinical trials have patents attached to them. Some of them, such as favipiravir, which is used to treat the flu, and the combination of iopinavir and ritonavir, sold under the brand name Kaletra to treat HIV / AIDS, have short-term patents in effect. Remdesivir, a drug developed for Ebola by biotechnology company Gilead, holds major patents around the world that last until 2038. Last month, Gilead rushed to obtain “orphan drug” status in the United States. United for the potential use of Remdesivir against Covid-19. Orphan status gives companies government incentives to develop drugs for rare diseases that otherwise would not be profitable, but Covid-19 is just the opposite of a rare disease. The company then backed down.
It is quite possible that a Covid-19 vaccine is covered by several patents. Vaccines are now a big business. Take infant mortality from pneumonia, for example. The two vaccines in use today are buried in a patchwork of patents owned by Pfizer and GlaxoSmithKline. India is using the Pfizer vaccine, which sells for $ 250 for a full course, but is available to government at a reduced rate of £ 8 via GAVI, funding from the Vaccine Alliance. But since demand in India reaches tens of millions, even the subsidized cost is unaffordable, and only a small fraction of babies end up getting vaccinated. Thus, 40 years after the development of a pneumonia vaccine, 127,000 Indian babies die from it each year, while the vaccine they cannot afford continues to generate £ 4.5 billion for Pfizer every year.
It is not surprising that countries are taking preventive measures to deal with monopoly control of medical treatment. Compulsory patent licensing – a legal measure by which countries can suspend patents on a product – is gaining popularity. Last month, Chile declared that the pandemic justified the use of compulsory licenses; others soon followed. Israel has issued compulsory licenses for lopinavir and ritonavir, Ecuador has approved a resolution requesting the Minister of Health to issue compulsory licenses on all patents related to Covid-19, Canada and Germany have amended their patent laws to allow rapid granting of a compulsory license, and Brazil is in the process of amending its patent law to facilitate compulsory licenses.
These measures are useful, but they force each country to go it alone. And patents aren’t the only thing preventing access to coronavirus treatments. Costa Rica recently submitted a proposal to the World Health Organization for a global technology pool Covid-19 – a place where all the necessary intellectual property, such as patents, designs, trade secrets and software, could be reunited. The pool would encourage governments to share innovations and make them available globally. The Covid-19 technology pool is far from being concluded, but its support is increasing. Policymakers in the Netherlands and the United Kingdom have recently given their weight to the idea, and the WHO Director-General has welcomed Costa Rica’s proposal, while UNITAID has pledged to finance it.
Given that this is a pandemic, it may well be that no company can afford to wield the stick for a Covid-19 monopoly. If the Covid-19 treatments were free from monopoly control, we would have a real chance of reaching everyone. If that happens – and it’s still a big one if – we might realize that such a pharmaceutical system is not only what we need to survive Covid-19, but also what we need to survive other diseases.
• Achal Prabhala is a Shuttleworth Fellow and coordinator of the AccessIBSA project, which advocates for access to medicines in India, Brazil and South Africa.
• Ellen Ho t Hoen is director of Medicines Law & Policy, researcher at University Medical Center Groningen and founder of the Medicines Patent Pool.