June 26, 2022

In WTO’s Geneva Ministerial Death Trumps Life

Prabir Purkayastha

THE UNAIDs executive director, Winnie Byanyima had appealed before the 12th WTO Ministerial of WTO in Geneva that the world would face a grim future if patent waivers did not take place. At a press conference, Byanyima had said, "In a pandemic, sharing technology is life or death, and we are choosing death," In the 12th Ministerial of the World Trade Organisation (WTO), which ended on June 17th, the rich countries did precisely that. They blocked almost all possibilities of providing cheap vaccines, anti-virals and diagnostics for the world. After two years in WTO of "postponing"—or blocking—the India-South Africa proposal for a waiver on patents for Covid-19 vaccines and medicines, the club of the rich countries—the European Union, the US and the UK—ensured that no worthwhile patent waiver measure was passed. The profits of big pharma once again trumped the lives and health of the people. As it had done during the AIDS epidemic.

The so-called "concessions" accepted in the 12th Ministerial do simplify some of the cumbersome procedures in the Doha accord for issuing compulsory licenses. But it makes it much more difficult for countries like India and China, which have considerable manufacturing capacity, to supply vaccines under such compulsory licenses. So yes, countries wanting vaccines can issue compulsory licenses more easily, But to whom, If not the countries with manufacturing capacity? 

In vaccine manufacture, it is not the "formulae" of the vaccine that matters, Unlike in many medicines, which are small chemical molecules and therefore easy to patent. Vaccines are large molecules and belong to what are called biologics. The key to their manufacture is not the "formulae" of the compound but the manufacturing at an industrial scale, the production process of replicating the complex large molecules accurately. This is "know-how" guarded not under patents but under trade secrets. It is not that these trade secrets cannot be duplicated or secured by giving somebody who knows the process a job. But this opens companies who try this to costly legal action, including in WTO. And the threat of unilateral sanctions by the US, EU and the UK. 

The upshot is that Pfizer and other Big Pharma companies will continue to make huge windfall profits at the expense of people's lives. Even if the continuing pandemic leads to new SARS-CoV-2 variants emerging and the continuation of the pandemic. Less than 20 per cent of Africa's continent, with 700 million, have been fully vaccinated, while vaccine doses go a-begging in the US. We have the vaccine production capacity to immunise the entire global population. But that is not in the interest of big pharma, for whom profits matter far more than human lives. Even if it saves countless lives and reduces the possibility of new, dangerous variants emerging. 

Just to put in perspective, Pfizer's profits have roughly doubled during the pandemic, with the BioNTech-Pfizer vaccine providing a significant part of its profits. If it was a country, its earnings of $81 billion last year would have placed it ahead of the GDP of large countries such as Ethiopia, Ghana and Kenya! Apart from vaccines, the monopoly over diagnostics and anti-viral drugs also pushes up the costs for the people while generating windfall profits for big pharma. 

The only waiver in the Geneva Ministerial was on compulsory licenses for vaccines. It did not address patents on diagnostics and anti-viral drugs. It also did not address the other issue that had been raised that WTO includes in its waiver, other intellectual property rights such as trade secrets, essential to the mass production of vaccines. 

The 12th Ministerial kicked the ball six-months down the line on diagnostics and anti-virals, with very little chance that the rich countries would have a sudden change of heart. Which they have not over the course of the two-year-long pandemic that has already killed millions. 

Why is immunising the global population important? Simply put, the more people the virus for Covid-19 (the SARS-CoV-2 virus) infects, the more the chance of new variants emerging. There is a comfortable feeling among a section of the people that the more the virus mutates, the more benign it is likely to become. This used to be a common opinion among a section of the medical community. However, evolutionary biologists argue that there is no evidence to show this. And even if it is held to be true in the "long-run", as John Maynard Keynes, the economist, had put it, "In the long run, we are all dead!" A biological long run can be a very long run indeed.

The more we live with a pandemic that even today infects more than 700,000 every day, we are dicing with the possibility of a new variant emerging that can be as transmissible as Omicron and also with larger case fatalities. The transmissibility of the virus is maximum when the infected patient has only mild symptoms, is physically and socially mobile, and can therefore infect others. This is the window in which the virus spreads. Whether the patient subsequently recovers or dies has little impact on the replication of the disease in others. It may have an impact on our social behaviour, but that has little to do with the virus becoming more benign with time. 

We, as people, do generate more immunity to the virus over time, but that is what then drives the future evolutionary path of the virus. If Delta showed higher transmissibility, Omicron has a much higher immune escape. This means that Omicron can bypass our immunity derived from earlier infections or vaccines. Of course, if the evolution of the virus leads to the patient being so sick right from the beginning that s/he cannot move around at all, that will halt or lower the transmission of the virus. But that is not how the SARS-CoV-2 virus behaves. 

How is the SARS-Cov-2 likely to evolve over the next few years? As immunologists tell us, the evolutionary trajectory of the virus depends on the complex interplay of a number of factors that shape the response of our immune system to the evolution of the virus. 

Depending on the virus turning more benign, or a mythical herd immunity cannot be an answer to the current pandemic. The vaccines are crucial to any public health answer to the pandemic as they cut down the number of new infections and, therefore, the roots of new transmissions. And yes, for the foreseeable future, we will have to live with repeating our vaccine booster diseases as we fine-tune the vaccines to newer variants. 

While the patents on anti-virals as a cure for Covid-19 are important, they will certainly cut down the deaths and complications of long Covid; again, patents come in the way of their use. The anti-virals are effective only in a small window of the first few days of the disease, and that means they have to be available cheaply for the people so that they can buy them from the chemist. The high cost and the control over the patents of these drugs do not provide a large enough market. A small market and high prices lead to a catch-22 situation: the prices are high because the market is small; the market is small since the prices are high! 

Again, open licensing of the anti-virals might make it possible to create a large market for anti-virals. But this is what the WTO does not allow. The route of compulsory licensing under WTO is cumbersome, and its "relaxation" in the Geneva Ministerial means that countries like India, which were crucial in fighting the AIDS epidemic, are supposed to opt-out as suppliers. They then cannot become anti-viral suppliers for Covid-19 as they were for AIDS anti-viral drugs.

Why do not countries that have the capacity to manufacture advanced vaccines—India, China, Russia, South Africa—come together and offer technology and supplies to the rest of the world? Why do not countries collaborate with Cuba, a biological powerhouse, to produce vaccines locally? Cuba has developed four such vaccines, two of which are already under large-scale production.

The answer lies in the "rules-based international order" propagated by the club of the rich. The rules include sanctions on many countries, including Russia, Cuba and China. For those not yet under sanctions, there is the threat of future sanctions—the US, EU and UK—the gang of three who teamed up in WTO to defeat the India-South Africa initiative in WTO. The US also has its domestic law 301 for "protecting" its intellectual property under which it threatens countries with US sanctions. India and China figure prominently every year in the list of countries whose laws and actions do not conform to US domestic laws. If the US and its allies do not win in WTO, they then use their "rule-based order" where they get to make the rules. Or if it is the US, its domestic laws, which, according to even the US courts, trump international law. 

Welcome to our brave new world, where to paraphrase Winnie Byanyima, death triumphs over life.