Analysis. It will be difficult now to claim that the suspension of patents is a non-viable option, as we have been told for months. Now, the issue is on the agenda at the highest levels.

After Biden proposed a patent waiver, Big Pharma is on the offensive

The effect of the Biden administration’s initiative on vaccines has been so disruptive that now the press is talking everywhere about “the U.S. waiver,” as if the idea of suspending patents was born across the Atlantic.

Among those in civil society who have been engaged on the issue of access to essential medicines, there is agreement that it was a game changer, a point of no return in all ongoing negotiation processes.

From a symbolic point of view, the proposal of the suspension of patents on vaccines is coming from the country that in 1986 directed and orchestrated the inclusion of intellectual property protection in the GATT negotiations [the precursor treaty to the WTO], which had previously excluded this field from trade agreements. Two American multinationals were the protagonists, IBM and Pfizer, with a lobbying operation that won its place in history.

It will be difficult now to claim that the suspension of patents is a non-viable option, as we have been told for months. Now, the issue is on the agenda at the highest levels.

In Europe, the topic of intellectual property waivers has finally been taken away from the bureaucrats of the Commission, who are in thrall to the pharmaceutical lobby, and is at last in the hands of governments and parliaments.

Inevitably, Biden has caught the European leaders wrong-footed, resulting in an ambiguous and chaotic domino effect, in this Union that only seems capable of revealing cracks and conflicts, with Germany and Austria distancing themselves from Biden and refusing to question the WTO agreements. At the same time, Ireland, France, Belgium, Italy and Spain support the suspension of patents.

The French position, however, “is that of President Macron,” as official sources in Paris are saying, uncertain about the way to proceed. And in Italy, the position of Ministers Speranza and Di Maio seems to similarly invoke that of Prime Minister Draghi.

Now, the European governments must stand up for their positions, starting from the EU Social Summit in Porto this weekend.

At the WTO as well, the favorable wind from the U.S. initiative has given a little more momentum to the negotiations, which have been stalled for seven months.

The Australian Prime Minister has called it “tremendous news,” and Putin’s Russia has also decided to emulate Washington, committing to a moratorium on patents for Russian vaccines. However, Norway and Switzerland remained firm on their position against patent waivers.

For their part, the ambassadors of India and South Africa are awaiting with interest the new version of the waiver that will be proposed by the Director General of the WTO, Ngozi Okonjo-Iweala, at the end of the month, on the eve of the meeting of the TRIPS Council.

But it seems very likely that the final decision on the subject will be taken only at the 12th WTO Interministerial Conference (November 30 – December 3, 2021). A timeframe that is tough to swallow, while we are still suffering from the pandemic. The relaxed schedule particularly lends itself to the pressure of the pharmaceutical lobby, which sprang into action immediately after the first shock of the statements from the U.S. Secretary of Commerce, Katherine Tai.

For now, the fear that India and South Africa may end up accepting more restrictive solutions compared to the request for exemption they submitted in October seems groundless. But in the geopolitical game that is taking shape in the second year of the pandemic, India and South Africa’s position is a potential critical point that requires careful monitoring, and accompanying action, by civil society and public opinion, which are increasingly aware of the issue, as vaccine apartheid is taking shape on the global scale: to date, the Covax initiative has sent just 54 million doses of vaccines to 121 countries.

In the global South, only 0.3% of the population has received their first dose.

A game changer, indeed—but what is the direction of this new game? The multiplication of patent suspension proposals is creating objective confusion at this stage, which means that the current optimistic moment must immediately give way to great care and caution about the next steps for the forces deployed in the field.

It bears repeating: there is a substantial difference in perspective between the American proposal and that of India and South Africa, today supported by 118 countries at the WTO. It would be a highly undesirable scenario if the former were to supplant the latter.

Biden is taking aim only at patents, i.e., at a single type of intellectual property, and only at vaccines, i.e., at the main device of immuno-politics that is being built up in international forums, ignoring everything else.

However, the dramatic situation in India and Brazil demonstrates that after 17 months of pandemic, much of the world is still without essential hospital equipment. It’s possible that the proposal of the suspension of patents on vaccines was a worried response from Biden to the words of the director general of the WHO, who, in a press conference on May 3, said that the organization had counted more global cases of COVID-19 in the two previous weeks than in the first 6 months of the pandemic.

Biden proposed widening the access to vaccines because he understood that the viral variants are a serious threat, and no one can blame him. On the other hand, the proposed “made in the U.S.” waiver seems to apply more to the adenovirus vaccines of AstraZeneca and Johnson & Johnson, or those that are still in the research process, for which the patents have an objective relevance.

The case of mRNA vaccines is different: for these, the most important intellectual property exemption would have to be regarding the know-how of the new technology and the data on the vaccine manufacturing processes. At the same time, the mRNA vaccines have a very demanding cold storage chain, and therefore less possibility of use in the context of countries of the global South, where the logistic conditions of adequate healthcare systems do not exist.

The next few weeks will be decisive, between the G20 summit on global health, the WHO summit and the G7. The game may have changed, but it remains the same.

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