Brussels seeks to regain initiative on Covid vaccine patent debate

Brussels has sought to take the initiative on the vexed topic of Covid-19 vaccine patents after being outflanked by a US proposal to override intellectual property rights.

Valdis Dombrovskis, executive vice-president of the European Commission, said World Trade Organization members should use existing rules to make it easier to share intellectual property (IP) for coronavirus jabs, rather than expand the ability of governments to override patents, as proposed by the US.

Given the pandemic represents a national emergency, the requirement to negotiate with rights holders to license the production of Covid vaccines could be waived, he said in prepared remarks to the European Parliament.

The intervention was a plea for countries to increase access to vaccine technology under the existing WTO agreement known as Trips, rather than create a major new loophole in the IP regime by waiving patents. But experts questioned whether the EU’s more cautious approach to patents would have a significant impact on the debate.

“We will have to see what these provisions involve when explained in detail, but on the face of them the proposals about vaccine patents could mean very little,” said Bryan Mercurio, a trade law professor at the Chinese University of Hong Kong.

Under Trips — also known as the Agreement on Trade-Related Aspects of Intellectual Property Rights — a compulsory licensing mechanism already exists that allows a government to license a patented invention to a third party without the consent of the patent-holder. Under the rules, negotiations with rights holders can also already be bypassed in a national emergency. But critics say the mechanism is overly complex and not fit for purpose.

Dombrovskis argued the process could be improved. Where a compulsory licence was granted to a manufacturer, this could involve limiting compensation to the patent holder to ensure they gained no profit, he said. Any compulsory licence could also cover exports to countries that lacked their own manufacturing capacity, he added.

The commission’s response comes after US president Joe Biden’s top trade adviser, Katherine Tai, said the US would support a waiver of IP protections for Covid vaccines. Such a move would allow pharmaceutical manufacturers to make “copycat” vaccines without fear of being sued for infringing IP rights.

The Biden administration’s proposal wrongfooted the EU and prompted a wary response from member states including Germany, home to the pharmaceutical company BioNTech, which together with Pfizer makes one of the leading Covid vaccines.

The first waiver proposal was made last year at the WTO by India and South Africa. It would have granted very broad permission to override patents on treatments related to Covid. The proponents are due to release a revised proposal this week, with narrower and time-limited rights to waive patents.

Dombrovskis said the EU was also willing to engage in discussions for a “targeted and time-limited” patent waiver, but he said WTO members still needed to have full details of what the US was proposing. EU member states have given the US suggestion a frosty reception.

Dombrovskis also confirmed that the EU would shortly be launching an initiative to boost vaccine manufacturing in Africa. 

“In the short term, the European Union maintains that it is key for all vaccine-producing countries to allow export immediately and to avoid measures that disrupt supply chains,” he said.

“In parallel, Europe will do everything possible to support efficient, fast and realistic solutions for expanding production and facilitating equitable access to Covid-19 vaccines and therapeutics: we are ready to walk the walk.”

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