© Reuters. FILE PHOTO: A medical worker prepares a dose of Oxford / AstraZeneca's COVID-19 vaccine at a vaccination center in Antwerp, Belgium on March 18, 2021. REUTERS / Yves Herman
By Michael Erman and Blake Brittain
(Reuters) – U.S. support for surrendering intellectual property rights to COVID-19 vaccines could be a tactic to persuade drug makers to support less drastic moves like sharing technology and expanding joint ventures to quickly crank global production, lawyers said Thursday.
"I think the end result that most of the players are looking for here is not intellectual property surrender, but expanded global access to vaccines," said Professor Lisa Ouellette of Stanford Law School.
President Joe Biden on Wednesday backed a proposal to forego the World Trade Organization (IP) intellectual property rules that would allow poorer countries to manufacture vaccines for themselves. So far, COVID-19 vaccines have mainly been distributed to the rich countries that developed them, while the pandemic hit poorer ones like India.
The real goal, however, is to expand vaccine distribution.
"If it is possible to increase the rate of production, it would potentially give manufacturers more incentive to reach an agreement to achieve this," Ouellette said.
Vaccine manufacturers like Moderna (NASDAQ :), Pfizer (NYSE 🙂 and BioNTEch have argued that patents weren't a limiting factor on the offering. New technology and global supply constraints are often cited as challenges, yet both Moderna and Pfizer have steadily increased supply outlook.
"There is no mRNA in production capacity worldwide," said Stephane Bancel, Chief Executive of Moderna, on a conference call with investors Thursday, referring to the messenger RNA technology behind both the Moderna and Pfizer vaccines .
"This is a new technology. You can't hire people who know how to make the mRNA. Those people don't exist. And even if all of these things were available, anyone who wants to make mRNA vaccines has to buy the machine. Invent the manufacturing process, invent verification processes and analytical processes. "
To significantly increase vaccine production capacity within two years, the Biden government would have to do much more than forego patents, including providing funding to find and build new manufacturing facilities and supporting technology transfer and know-how. Transfers to the new manufacturers, said drug supply chain expert Prashant Yadav.
Additionally, the U.S. government must prevent foreign companies from using COVID-19 vaccine makers' technology to compete in areas outside of COVID-19 that are likely to be more lucrative in the long run, said Thomas Kowalski, attorney at Duane Morris who specializes in intellectual property. Once a competitor has the technology, usage restrictions are difficult to enforce, he said.
Professor Sarah Rajec of William & Mary Law School said she doesn't think waiving itself would do as much as the signal from the United States to step up corporate intellectual property advocacy that patent rights are taking a back seat to the world's urgent needs occur population during the pandemic.
Rajec said Biden's support for a waiver "urges drug companies to be more open to partnerships and other licensing on favorable terms than they might otherwise not."
The drug makers argue that they already have significant partnerships and share technology with competitors that they might not have connected with without the pandemic.
"Our position is very clear: This decision will further complicate our efforts to make vaccines available to people around the world, address emerging variants, and save lives," said Brian Newell, spokesman for the pharmaceutical industry group Pharmaceutical Research and Manufacturers of America, in an explanation.
European patent attorney Micaela Modiano said that even if the waiver were accepted, vaccine manufacturers are likely to negotiate a payment if it is less than what is generally paid in licensing agreements. Her company Modiano & Parners represents Pfizer but has not handled any COVID-19 related matters.
"I would envision that the drug companies are already and will continue to do significant lobbying to ensure that this waiver, if adopted, does not count as such but receives financial compensation," she said.