Tuesday 13 July 2021

TRIPS waiver: many academics sign open letter supporting it

 The idea that the TRIPS agreement should be waived (just a little) to remove IP protection from Covid vaccines, first raised by India and South Africa a few weeks ago, has new momentum following publication of an open letter signed by “over 100 international IP academics” supporting the intiative. The list contains some well-known names (well-known, that is, to IP practitioners and students) although a couple that are missing are perhaps even more significant (I leave you to work out who they might be). You can read the text here and my friend Mark Anderson's take on it here. He is not convinced, and neither am I.

Despite the government's commitment (superficially at any rate: it hasn't exactly stuck to the script, otherwise it would never have repealed s.52 or introduced criminal offences for designs) to the Hargreave Report's recommendation that changes in the law should always be supported by hard evidence - so-called "evidence-based policy-making" - the letter is rather short on hard facts. It footnotes a number of academic papers, and perhaps I should not expect an open letter to go into its evidence at any length but simply citing academic articles is not very convincing. Annoyingly, the links in the footnotes do not take you to the articles themselves, which would have enhanced the credibility of the exercise: I would have liked to have been able to look at them easily. As it is, I have downloaded the half-dozen that look most relevant and will read them in due course, but as this is not a peer-reviewed academic journal I don't need to be extremely rigorous in expressing my opinions.

It seems to me that, while the patent system clearly failed to ensure that we had a vaccine from an early stage (however magical the patent system is, it could hardly have produced a vaccine before the pandemic), it is not good enough to say that it must therefore be done away with - at least for the duration of the present emergency. Perhaps the proposed waiver would help, but if it does I think it will be only in a very small way. Waiving patent (and other IP) protection is all very well, but without the accompanying know-how the patent will be of little use. Protection for know-how could also be waived, but far from ensuring that the information becomes freely available, that is likely to cause the pharmas to keep its secrets even more tightly controlled.

This is a crisis in which there has been a conspicuous failure of the market system, which is built on patent protection. Vaccines have been produced not because the pharmas could enjoy monopoly profits from behind their patent fortifications, but because governments gave them a great deal of public money. There is a very important discussion to be had about how the fruits of that expenditure - the patents and other IP - should be distributed, and no doubt the pharmas will say that they need the patents for the future, and perhaps that the publc money was just a contribution. It might well lead to a fundamental reappraisal of how the patent system works, and the desirability of creating so many private monopolies especially when they are created at public expense. But that is very far removed from saying that patent protection should be waived. Perhaps it would make a contribution, and perhaps the evidence that I haven't yet read will support that, but it will be a very small contribution, quite out of proportion to the amount of noise being made about it, and it would be far more productive to direct the energy that is being expended on the waiver campaign to matters that will have a more immediate and greater impact on the problem.

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