Latest update March 19th, 2024 12:10 AM
Jan 15, 2021 Letters
DEAR EDITOR,
Recently, a lengthy article was published in mainstream media highlighting a case where India and South Africa are calling on the World Trade Organization (WTO) ‘to exempt member countries from enforcing some patents and other Intellectual Property (IP) Rights under the organization’s Agreement on Trade Related Aspects of Intellectual Property Rights, known as TRIPS.’
The reason why the exemption or waiver from enforcing some patents under the WTO TRIPS Agreement is being sought has to do with the need to access patented treatments on an affordable basis to fight off the COVID 19 pandemic.
Following the call, WTO members are currently discussing how best to use the global intellectual property system to combat the global pandemic. It would be of interest to know whether Caricom has formulated a position on this matter.
The TRIPS agreement came into effect on January 1, 1995. It set out the minimum standards for the protection of intellectual property, including patents on pharmaceuticals.
The newspaper article tickled my interest having laboured as Minister of Foreign Trade and International Cooperation (2001-2006) in the vineyards of (WTO).
The issues raised in the article reminded me of the negotiations that took place at a WTO meeting in June 2003 at Sharm el-Sheik Egypt. At that meeting, in which I participated, the TRIPS/public health issue took centre stage.
The big issue at that time was, how to avoid enforcement of WTO TRIPS protected patents so that developing countries could acquire affordable/generic medicines to treat the HIV/AIDS pandemic.
Following the Sharm el-Sheik meeting, and later WTO ministerial meetings, only the Least Developed Countries (LDC) members of the WTO and Somalia, a non-member, benefitted from an agreement enabling them to access treatment such as antiretroviral (ARV) drugs to treat persons infected with HIV/AIDS.
Fifteen years later, the call by developing countries on the WTO to not enforce patents protected by the organization’s agreement on TRIPS is back with us once again, this time it is to access affordable vaccines to beat back the COVID-19 pandemic.
In the meanwhile, the WTO has called on its members ‘to work to ensure that intellectual property rights such as patents, industrial designs, copyrights and protection of undisclosed information do not create barriers to affordable medical products such as vaccines and medicines or the scaling up of research development, manufacturing and supply of medical products essential to combat COVID-19.’
Developing countries can ill-afford the huge amounts of foreign exchange needed to procure the expensive medications produced by the large pharmaceutical companies.
Many developing countries like Guyana will have to depend on the World Health Organization’s COVAX and perhaps, vaccines like SINOVAC from China or the GAMALEYA vaccine from Russia.
Both vaccines have shown impressive effective rates in countries where they have been approved for use by the local authorities.
China’s SINOVAC has made tremendous headway in the vaccine diplomacy race with SINOVACS use in South East Asia, Turkey, Brazil and the Middle East.
And the Government of the People’s Republic of China has offered Latin America and Caribbean countries access to a whopping US$1 billion loan to buy vaccines.
The Jamaican Government’s recent announcement that because of it joining WHO’s COVAX Facility, Jamaicans will get the COVID-19 vaccine in April this year. That timeline coincides with the WHO’s announcement that the COVAX vaccine will be available by April this year.
Since two doses of each vaccine is required, the cost and percentage of their effectiveness will be decisive factors in determining which of the vaccines self-financing developing countries would procure. The Moderna vaccine which is 95 percent effective cost US$33 per dose; the Pfizer vaccine which is 95 percent effective cost US$20 per dose; the NovaVax vaccine which is 62 percent effective cost US$16 per dose; Johnson & Johnson’s vaccine (still being tested) is estimated to be between 50-90 percent effective and is estimated to cost US$10 per dose; the SINOVAC vaccine which is 50-79 percent effective cost US$13 per dose; the Gemaleya vaccine which is 92 percent effective cost US$10 per dose and the AstraZeneca vaccine which is 62-90 percent effective cost US$4 per dose.
But what does the negotiations at the WTO ‘to exempt member countries from enforcing some patents and other IP rights under TRIPS’ mean for Guyana? What is the relevance?
In cases of public health emergencies, provided Guyana’s patent laws have incorporated the TRIPS Amendment, Guyana would be allowed, as a WTO member, without manufacturing capacity, to use compulsory licensing or to negotiate appropriate licences to access patented treatment from another WTO member that has such capacity.
My own view is, at this time, the waiver proposal is not of particular value to Guyana. However apart from other futuristic considerations, support for the proposal should be evaluated on the basis of political support for other WTO members.
If it hasn’t done so as yet, Guyana should move swiftly to put in place the legal framework and systems to ensure it has access to affordable COVID-19 vaccines. It is to be assumed that Guyana, like Jamaica, has joined the COVAX Facility.
The announcement made last week by the Guyana Government that a COVID-19 Vaccines Task Force has been established in preparation for the rollout of the inoculation campaign against the pandemic coincides with the announcement made on January 13 by the Jamaican Government.
And while the Jamaican Government announced that vaccines will be available on April, the Guyana Government made no mention of a time frame for the availability of vaccines locally.
In furtherance of its growing increasing all-round cooperation with the United States, it is quite likely that the US would make a shipment of vaccines free of cost available to Guyana. Guyana should reciprocate by taking steps to enter into a Bilateral Intellectual Property Rights and Investment Protection Agreement with the United States.
Sometime in 1999, the Ministry of Foreign Affairs in collaboration with the AG’s Chamber, drafted a Guyana/USA Intellectual Property Rights Agreement. I led a small delegation to Washington to negotiate the agreement with the US authority. However, at the end of the negotiations, when we thought we had an agreement in the bag, the US delegation announced that they wound need an omnibus Bilateral Investment and Protection Agreement before the Intellectual Property Rights Agreement could be signed. Because we were not mandated to negotiate such an agreement, the process ended there.
In light of this experience, and the fact that Guyana is now on the cusp of being a player in the global economy, government should take steps to ensure that Guyana’s copyright laws are updated. And while our Patent Act may not have been amended to make it TRIPS compliant, steps should be taken to amend the Act and, if necessary, to accede to the Patent Cooperation Treaty (PCT).
Yours faithfully
Clement J. Rohee
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