Is it legitimate that the health of millions of people around the world today depends on a handful of pharmaceutical companies? And faced with the inability of anti-Covid vaccine manufacturers to serve everyone, would it not be appropriate to circumvent their patents to promote national productions in all countries where this is possible? This debate on patents, which for a long time concerned only the countries of the South, begins to emerge in those of the North where governments, even if they pay the price, are not able to supply themselves satisfactorily with vaccines. But, on the strength of their experience in this area, it was first of all South Africa and India which, in October, raised this patent problem before the World Trade Organization (WTO). By calling for temporary exemptions from intellectual property rights agreements (TRIPS) so that each country can have its own weapons in the face of the coronavirus.
So far, no agreement has been reached. In this context, it is difficult not to think of the automatic license mechanism, a legal provision provided for in WTO texts and which has been widely used in recent years to promote access to AIDS drugs. “This license allows a country, in a health emergency, to circumvent the patents of pharmaceutical companies to produce its own drugs, for example in generic form”, says Nathalie Ernoult, at Médecins sans frontières (MSF).
In the field of HIV, this ex officio license (or compulsory license) has proved to be a very effective weapon, used in particular by Thailand, India and South Africa, to produce much cheaper generics. “It is also a deterrent weapon against large laboratories. By threatening to use the ex officio license, Brazil, for example, was able to significantly lower the prices of AIDS drugs ”, underlines Philippe Frouté, lecturer in economics at the University of Paris-Est-Créteil-Val-de-Marne.
Even a wealthy country like France could use this mechanism for anti-Covid vaccines. But the government would have to go to court to get the license. “This is not the path we favor. Our priority today is that agreements can be found to allow rapid development of vaccine production in France ”, says one in the entourage of Agnès Pannier-Runacher, Minister Delegate in charge of industry. “Suppressing patents is a bad idea” because they are not the cause of “Blocking”, added this one on France Info, Sunday February 7th. “Our difficulty” is rather “Find sites capable of manufacturing” vaccines, she continued, announcing a call for projects of 300 million euros in this direction.
Placed under strong pressure from the countries of the North, the laboratories have in fact already adopted a policy aimed at promoting, after negotiations, the granting of licenses to local pharmaceutical companies. Thus, in France, several companies, including Sanofi, have entered into agreements with Pfizer-BioNTech or Moderna to produce vaccines against Covid. “The problem is the capacity of countries to locally produce these vaccines which, for some, require specific industrial know-how”, confirms Pierre Breesé, industrial property advisor at IP Trust.
Could the countries of the South have recourse to the ex officio license? They should then engage in a battle before the courts, necessarily long and not very compatible with the current emergency of the Covid. This is the reason why India and South Africa are betting, for the moment, on negotiations at the WTO. By coming up against the reluctance of certain countries, convinced that touching the patents of large pharmaceutical companies would risk playing against innovation and dissuading them from taking risks to develop new vaccines.