Patent Waiver for Vaccines and Right to Health

The present situation of Covid-19 Pandemic have really been created a threat to the world because of which every country should have the right to make his own vaccines. The Patent waiver might open up space for production of Covid-19 Vaccines with Emergency Use Authorization (EUA)- such as those developed by Pfizer, johnson & johnson, etc. on a large scale in middle- income countries. Most production is currently concentrated high – income countries; production  by middle income countries has been happening through licensing or technology transfer agreements.

India and South Africa spearheaded the IP Waiver for Covid-19 vaccines campaign last year under the WTO’s TRIPS agreement to combat the pandemic. The goal was to lower the barriers to developing their own vaccines, especially for low-income countries.

Even if the WTO agrees to temporarily waive the IP and patent rights on them, countries like India and South Africa, as well as many other developing countries, will have to wait a long time before they can start manufacturing “copy cat” versions of the world’s leading Covid-19 vaccines. Many pharmaceutical companies argue that ramping up production capacity will be a lengthy process, citing this as a reason for their opposition.

But over 120 nations supported these proposals out of all 164 member countries of W.T.O are yet to begin text- based negotiations on the matter on Geneva. The U.S backing up to the proposal has certainly made the task to begin negotiations much easier. Germany has voiced strong opposition, believing that suspending IPR for Covid-19 vaccines will have serious consequences for its production. While Russia has supported  the move, the European Union has said it is ready to discuss the matter.

While the waiver resolves the issue of obtaining the legal right to manufacture other companies’ vaccines, many experts in the field believe that the issue of sharing vaccine manufacturing know-how remains unresolved. Patent waivers and granting access to the recipe are not the same thing. For instance it completely depends on Pfizer, if they want to share how they manufacture the vaccine(the technology. A number of roadblocks have slowed things down not all patent related that includes raw material shortages, the complexity of new technologies, and so on.. Production capacity and the proclivity of high-income countries to acquire “most supplies” limit the widest possible access to these Covid-19 interventions during the pandemic. Canada, South Korea and Bangladesh have shown interest in making Covid-19 vaccines if they get a patent waiver. Many people believe it will be a incredible opportunity for India to use its manufacturing capabilities to meet its own demand, as well as the demand of several other countries around the world. India’s manufacturing capacity has remained under utilized despite exporting millions of Covid- 19 vaccines.

The manufacturing capacity of India is grossly under utilized. We already have three registered vaccine manufacturers, and three of them are currently used to make Covid-19 vaccines. Bharat Biotech, Serum Institute of India, and Biological E Panacea are among those producing covaxin, but what about the other 20?

The pandemic has exposed the deep vulnerabilities of India’s health care system. The Directive Principles of State Policy in part (iv) of the constitution provide a basis for the right to health.

  1. Promote the welfare of its people (Article 38);

  2. provide public assistance in case of sickness, disability or “undeserved want” (Article 41)
  • ensure just and humane conditions of work
  • Article 39(E) directs the state to secure health workers,
  • Article 42 directs the state to just and humane conditions of work and maternity relief, Article 47 casts a duty on state to raise the nutrition levels and standard living of the people and to improve public health.

Patents and access to life saving drugs (as we have right to health)has always been a contentious issue. The right to healthy life is moral minimum, and to find a rational basis to deny it is deeply offensive to the idea of life itself. The pharma corporations and institutions claim patents are just a recompense for their investments, overriding concerns over equitable and wider access to life- saving drugs. The US supporters for IP waiver stems from a proposal by India and South Africa in. The W.T.O last year. That proposal had, called the waiver for Covid interventions. These interventions is still limited by production capacities as the high low countries.

Even if all types of legal restrictions on the use of vaccines technology were lifted, there still a problem remains for not having enough infrastructure(manufacturing facilities and equipment) nor raw materials as materials are in short suppy (the components needed to manufacture and deliver vaccines) to produce and distribute Covid-19 vaccines as predicted under current waiver proposals. We have long faced a global vaccine manufacturing problem that will not be fully resolved during the current pandemic. In the case of vaccines that need to be kept at ultra cold temperatures, these problem intensify.

Right to Health is a part and parcel of Right to Life and therefore right to health is a fundamental right guaranteed to every citizen of India under Article 21 of the Constitution of India. The Supreme Court of India logically extended its interpretation of the right to life to include the right to health through a series of judicial precedents, and thus this right has been recognised.

In September and October 2020, the National Human Rights Commission (NHRC) issued a comprehensive set of human rights advisories, including those related to health and mental health, to protect and promote the right to health guaranteed by Article 21 of the Indian Constitution. The situation has worsened, according to the NHRC, with the arrival of the second wave, and India is now facing a public health emergency of unprecedented proportions and severity. As a result, it has issued a second advisory on right to health in the context of Covid-19, to protect patients and the general public’s human rights and enable them to effectively access necessary healthcare. Therefore, it is the duty of the State to care for the health of the public at large and the Central Government and various State governments have, rightfully and proactively, taken various measures to contain the entry and spread of the COVID-19 pandemic.

Authored by: Priyankita Sahoo

Priyankita Sahoo is currently pursuing B.B.A LL.B (H) from Xavier Law School, XIM University, Bhubaneshwar. She is grateful to Advocate Nadeem Abbasi for his valuable suggestions and inputs in relation to this article.