COVID-19 vaccine patent waiver: Options for India as EU remains divided

There are at least 450 million citizens in India who are below 18 years of age and there cannot be herd immunity without vaccinating them.

In order to vaccinate them, the country needs 900 million more doses. Right now, India has not even begun addressing this challenge. The country is still struggling to find enough doses for those above 18.

India has more than 1.3 billion people and a long road ahead. However, the good news is, things are finally moving. America's support on patent waiver is a big win but now Germany has thrown a spanner in the works.

Chancellor Angela Merkel has opposed the waiver. Merkel issued a statement that said: "The protection of intellectual property is a source of innovation, and it must remain so in the future."

"The US proposal to remove patent protection for COVID-19 vaccines has significant implications for the vaccine production overall. However, the limiting factor in vaccine production is production capacity and high-quality standards, not patents," Ulrike Demmer, German government deputy spokesperson said.

Amid a global health crisis, Germany wants to keep patents locked. Europe is divided on the matter.

Merkel wants patents, Macron backs a waiver and the European Union is sitting on the fence as it wants to "discuss" in the best-case scenario, it means a delay and in the worst case, it's a derailment.

The World Trade Organisation (WTO) works on the basis of consensus. It has 164 members. All of them must agree to a waiver. The European Union continues to block it. A consensus would be very hard to achieve.

India could consider three other possibilities to unlock patents. Firstly, compulsory licensing: Section 92 of India's Patents Act allows it.

A compulsory licensing is when the government forces vaccine makers to share their recipes - the vaccine formula. It can be done if the patent of a vaccine is registered in India like Covaxin by Bharat Biotech.

Amitabh Kant, the CEO of Niti Aayog and the man leading an empowered group on the government's pandemic response, said India is considering sharing the patent for Covaxin with more manufacturers.

India has issued compulsory licences before. In 2011, such licenses were granted for a compound held by the pharma company Bayer. 

The compound helped treat kidney and liver cancer. Bayer explored every legal option to overturn the waiver. It went to the Bombay High Court and even the Supreme Court of India but ultimately, it lost the case.

Now, during the pandemic, Israel issued a compulsory licence for a drug to treat the Wuhan virus. There is a precedent both domestic and international. 

The second option is to buy intellectual property rights from companies and it works like this: the government talks to companies like Pfizer and AstraZeneca or any other vaccine maker, you buy their patents and allow Indian companies to use them. This too has been tried earlier.  

Last year, Greece pushed a proposal before other European states.

It wanted the European Union to buy the patent rights for both vaccines and the Wuhan virus tests and for this technology to be shared among all European countries.

However, due to the EU, the idea did not take off but India can surely consider it.

There are also some possibilities worth exploring. Moderna has said it will not enforce patent rights for its vaccine. It's a shot with efficacy of more than 94 per cent, it's a worthy candidate to consider.

Moderna will not enforce India's COVID-19 related patents against those making vaccines intended to combat the pandemic.

Even when India manages to get patents, it will have another hurdle to overcome - Indian manufacturers would need the expertise to set up factories for these vaccines.  

Moderna says it is willing to license its intellectual property.

India can explore it, discuss these possibilities.

And finally, option number three. This is a combination of moves. India could first grant a compulsory licence for a vaccine patent, then move for a waiver at the WTO to supply to other needy countries.

Instead of waiting for the WTO to negotiate a waiver for all, India could make the first move, ramp up its capacities and share the excess supply with support from the WTO.

The problem with compulsory license is that it can only be used for domestic production and use.

The waiver can only be used to make and use products at home. It cannot be exported through a compulsory licence.

In the past though, the WTO has allowed an exemption. In 2007, Canada had issued a compulsory licence for an HIV drug for Rwanda. After a waiver from the WTO, Rwanda was able to import seven million doses from Canada.

India could use the same process to issue compulsory licenses for vaccines and drugs, set the prices and export the surplus to other countries, using the same mechanism.

India could also ask allies like America to waive vaccine patents and get more companies to produce Wuhan virus vaccines and import the doses it needs.

Experts believe it could take months to negotiate a patent waiver for everyone at the WTO and with Germany now pushing back against waivers, India should start thinking about a plan B.

The world has options, it has to muster the intent.