At a clarification note to the public, ABPI (Brazilian Intellectual Property Association) warns of the inconvenience of the waiver regarding the patent protection of treatments and vaccines against Covid-19, which is under discussion within the scope of the WTO (World Trade Organization). The measure aims to suspend any patent right provided for in the TRIPs (treaty on intellectual property with accession by all WTO members) on technologies to fight against the Covid-19 pandemic.
In the note, ABPI warns that the waiver proposed by South Africa is more drastic than the compulsory licenses (popularly known as “patent breaking”) since it empties the rights of the holders and does not solve the pandemic problem in Brazil and worldwide.
ABPI points out that, at the moment, there is no treatment to cure Covid-19, just a few drugs that improve the patient’s clinical condition. The only medication approved for this purpose by Anvisa (National Health Surveillance Agency) is Remdesivir — for which there is no patent in force in Brazil — and whose titleholder has already waived the rights in several countries.
Likewise, the note states that there are no patents in force approved for vaccines against Covid-19: the agreements for the local manufacture of the Oxford-Astrazeneca and Coronavac vaccines already provide technology transfer. Also, Brazil and other developing countries are entitled to receive vaccines by the Covax consortium, established under the scope of the WHO.
The note goes on to say that, therefore, the attempt to withdraw legal devices that were negotiated to stimulate and protect investment in innovation, and which are in force for almost three decades, is hasty. ABPI points out that the “TRIPs already provides for several instruments to make the patent holder’s exclusivity more flexible – among them the compulsory license”. Besides, as a member of the treaty, Brazil has its own legislation to deal with compulsory licenses: in special situations, third parties may use the object of a patent without prior authorization from the titleholder, upon payment of fixed royalties based on legal criteria. Such an instrument has been previously used for drugs related to the HIV/AIDS pandemic, respecting the law and international treaties.
