The COVID-19 pandemic has understandably created a lot of confusion, anger and desperation amongst those hoping to get one of the coveted vaccines available around the world. Some medical experts blame the developers and their patent monopolies over the vaccines, arguing that we could vaccinate people much quicker if these developers simply shared their patents with other pharmaceutical companies.
There is clearly some significant tension between the right to protect or commercialize intellectual property and ensuring that we’re manufacturing the vaccines as quickly as possible. This issue is currently being debated by members of the World Trade Organization, where a proposal has been set forth which, if approved, would allow members to choose not to grant or enforce IP related COVID-19 medical tools until global herd immunity is achieved. Just yesterday, Ambassador Katherine Tai, United States Trade Representative, announced the Biden-Harris Administration's support of waiving IP protections for COVID-19 vaccines.
Currently, there are four approved COVID-19 vaccines in Canada, and each developer has different viewpoints when it comes to the intellectual property rights for their vaccine.
BioNTech, which partnered with Pfizer in April 2020, has disclosed that it relies on a combination of trade secrets and patents to protect various aspects of their mRNA manufacturing technologies. A Pfizer executive, in opposition to the World Trade Organization proposal, stated that “[intellectual property], which is the blood of the private sector, is what brought a solution to this pandemic and it is not a barrier right now.” Some experts have noted that even if they were to share their vaccine patent, no facility not already being used would have the suitable technology to manufacture the mRNA vaccine.
Moderna, which has seven patents related to its mRNA-based COVID-19 vaccine, has taken a slightly different approach when it comes to its intellectual property. While recognizing the importance of intellectual property rights in encouraging research, the company has pledged to not enforce their COVID-19 related patents against those making vaccines to combat the pandemic. Additionally, the pledge states that they are willing to license their intellectual property to others after the pandemic to eliminate any barriers to vaccine development.
AstraZeneca and Johnson & Johnson
The two developers of the non-mRNA-based vaccines are arguably taking the most relaxed approach when it comes to protecting their intellectual property rights and commercialization strategy. Both AstraZeneca and Johnson & Johnson have publicly pledged that their vaccines will be developed and distributed on a not-for-profit basis. The companies are licensing and collaborating with a number of facilities to ensure there are enough vaccines to vaccinate the global population in a timely manner.
It is difficult to support the idea that relaxing intellectual property rights for COVID-19 vaccines would have any effect on the ability to manufacture them faster. As explained above, there are two developers manufacturing vaccines without regard for profit, and two developers who use relatively novel, complex technologies and may have already maximized the manufacturing potential. Our main focus should be on ensuring that enough vaccines are distributed on a global scale so developing countries are not disadvantaged.
Written by Tyler McLaughlin, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.