Missing Link: Corona patents, mRNA open sourcing and public goods

Europe and the USA have prevailed with the proposal for a patent release initially limited to Covid vaccines. Instead of the simple patent release rule originally supported by 100 countries, the World Trade Organization passed the solution watered down by the rich countries after more than 48 hours of marathon negotiations. For example, the lack of a regulated transfer of knowledge to combat a pandemic costs the African mRNA hub, which is picking up speed, around 36 months more time for the start of vaccine production.


What is missing: In the fast-paced world of technology, there is often time to re-sort all the news and background information. At the weekend we want to take it, follow the side paths away from the current, try different perspectives and make nuances audible.

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The negotiations at the first ministerial meeting of the World Trade Organization in Geneva have dragged on like a thriller for four years. Wrestling continued into the night hours on Tuesday of this week. On Wednesday the conference in Geneva was extended by an extra day. Part of the first package of negotiations at the first WTO ministerial meeting since 2017 was the long-discussed release of process and substance patents for Covid vaccines.

Originally proposed by South Africa and India in October 2020, should the at least temporary renunciation of intellectual property boost the production and distribution of vaccines, Covid medicines and diagnostic products worldwide.

The EU was one of the opponents, along with Switzerland, the United Kingdom and the United States, even though the Biden administration agreed to negotiate just over a year ago. Quadruple negotiations between South Africa, India, the USA and the EU brought the compromise formula that has now been adopted. The United Kingdom resisted the text to the last.

However, what was passed has little to do with the patent exception originally envisaged, says Ellen ‘t Hoen, a lawyer and public health expert. ‘t Hoen co-founded the UN-supported Medicine Patent Pool in 2009, which was set up to license patent-protected medicines against AIDS.

“This is at best a microscopic exception. In principle, this is almost a step backwards, measured against the flexibilities that are granted to the states in the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights, ed.)”, says ‘t Hoen.

Because the text drafted by the countries with large mRNA patent holders limits pandemic-related exceptions to patent protection alone, at least for the time being. It could be effective for the rapid production of generic drugs, says ‘t Hoen, but they are excluded, as are diagnostics.

For the more complex vaccines, on the other hand, in addition to the suspension of patents, a transfer of know-how on manufacturing processes is also required – and that is not included in the text endorsed by the EU and USA. The question of whether medicines and therapeutics will also become patent-free for a limited period of time should be reconsidered in six months. “A hollow diplomatic compromise“, is ‘t Hoen’s first conclusion.

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