How will the Covid-19 pandemic end? According to conventional wisdom, the crisis may ease in a few months, when some of the antiviral medicines on trial succeed. In a few years’ time, when a vaccine becomes available, we may eradicate the virus altogether.
Yet it’s unlikely that this is how the pandemic will actually play out. Although there is every indication that treatments for coronavirus may soon emerge, the mere fact of their existence is no guarantee that people will be able to access them. In fact, Covid-19 is more likely to end in the same way that every pandemic ends: treatments and vaccines will be buried in a thicket of patents – and pharmaceutical companies will ultimately make the decisions about who lives and who dies.
We typically think of monopolies, where companies exert exclusive control over a commodity, as market failures that can be corrected with antitrust laws. Medical patents are the equivalent of legalised monopolies. In theory, patents are supposed to grant pharmaceutical companies a reward for investing in research and development. Crucially, they’re supposed to be temporary, lasting for 20 years. But in practice, patenting minor tweaks to a formula can extend this term considerably, foreclosing market competition and granting pharmaceutical companies the power to set prices.
In 1996, a treatment for HIV/Aids was brought to market in the US by a clutch of pharmaceutical companies. The treatment, a combination of antiretroviral medicines, turned a virus that was a death sentence into a chronic condition. It was priced annually at £6,500 per person – in most parts of the world, this price was the same in practice as having no treatment at all. It took until 2004, after millions of people had died from the illness, for India and South Africa to afford the treatment.
Already we’ve seen how medical monopolies have restricted access to coronavirus treatments. We know, for example, that health workers don’t have enough N95 respirator masks; less well known is that 3M holds more than 400 patents for respiratory protection, severely restricting who can produce and supply them in the US. Politicians have called on 3M to release its patents during the pandemic so production can be increased. Amidst an acute shortage of tests for Covid-19, a French diagnostic manufacturer submitted a test kit to the US FDA for emergency approval to sell it in the country, and was sued for patent infringement by a subsidiary of Softbank (this was later withdrawn).
And most of the promising treatments for coronavirus that are being tested in clinical trials have patents attached to them. Some of these, such as favipiravir, which is used to treat influenza, and the combination of Iopinavir and ritonavir, sold under the brand name Kaletra to treat HIV/Aids, have short-term patents in force. Remdesivir, a medicine developed for Ebola by the biotechnology company Gilead, has major patents across the world that last until 2038. Last month, Gilead rushed to secure “orphan drug” status in the US for Remdesivir’s potential use against Covid-19. Orphan status grants companies government incentives to to develop medicines for rare diseases that would otherwise be unprofitable, yet Covid-19 is quite the opposite of a rare disease. The company later backtracked.
There is every possibility that a Covid-19 vaccine will be encumbered with multiple patents. Vaccines are now a big business. Take infant mortality caused by pneumonia, for example. The two vaccines in use today are buried in a thicket of patents belonging to Pfizer and GlaxoSmithKline. India uses the Pfizer vaccine, which retails at $250 for a full course but is available to the government at a discounted rate of £8 through GAVI, the Vaccine Alliance funding. But given that demand in India runs into the tens of millions, even the subsidised cost is unaffordable, and only a small fraction of babies end up getting the vaccine. And so, 40 years after a vaccine for pneumonia was developed, 127,000 Indian babies continue to die from it every year, while the vaccine they can’t afford continues to generate £4.5bn for Pfizer annually.
It’s no surprise that countries are taking pre-emptive measures to deal with monopoly control over medical treatments. Compulsory licensing of patents – a legal measure by which countries can suspend patents on a product – is gaining popularity. Last month, Chile declared that the pandemic justifies the use of compulsory licensing; others soon followed. Israel issued compulsory licenses for lopinavir and ritonavir, Ecuador approved a resolution that asks the minister of health to issue compulsory licences over all patents related to Covid-19, Canada and Germany amended their patent laws to enable the swift grant of a compulsory licence, and Brazil is in the process of amending its patent law to make compulsory licensing easier.
These measures are useful, but they require each country to go it alone. And patents are not the only thing preventing access to coronavirus treatments. Costa Rica recently submitted a proposal to the World Health Organization for a global Covid-19 technology pool – a place where all the necessary intellectual property, such as patents, designs, trade secrets and software could be brought together. The pool would encourage governments to share innovations and make them available globally. The Covid-19 technology pool is far from a done deal, but support for it is growing. Policymakers in the Netherlands and the UK recently threw their weight behind the idea and the director-general of the WHO welcomed Costa Rica’s proposal, while UNITAID has pledged to finance it.
Given that this is a pandemic, it may well be that no corporation can afford to wield the stick for a Covid-19 monopoly. If Covid-19 treatments were free from monopoly control, we would have a real shot at reaching everyone. If this happens – and it’s still a big if – we might realise that such a pharmaceutical system is not only what we need to survive Covid-19, but also what we need to survive other diseases.
Achal Prabhala is a Shuttleworth Fellow and the co-ordinator of the AccessIBSA project, which campaigns for access to medicines in India, Brazil and South Africa.
Ellen ‘t Hoen is the director of Medicines Law & Policy, a researcher at the University Medical Centre Groningen, and a founder of the Medicines Patent Pool.