The Covid-19, the disease caused by the new corona virus first detected late last year in Wuhan City, Hubei Province of China has killed more than 200,000 people globally and close to 3 million has caught the known virus. There is no known treatment or vaccine for the virus as government health institutions and pharmaceutical giants’ battle for possible treatment and vaccine.

Scientists and physicians believe that the treatment for Covid-19 will be found. If the treatment is found by the pharmaceutical giants alone, they will decide who lives. These pharmaceutical giants will likely bury the treatment in a thicket of patents making it unaffordable for the poor countries.

With the race for the treatment and vaccine for Covid-19, these pharmaceutical giants will only think of monopoly, with monopoly they will exert exclusive control over such treatment or vaccine, this market failure can only be corrected with antitrust laws.

Patent which is a part of intellectual property right protection grants the holder of such patent exclusive protection of the creation of such invention or pharmaceutical commodity or product so that third parties cannot use the creation without the permission of the creator. This patent is usually granted through a license for a fee, the creator keeping the exclusive rights over such creation. This creates monopoly, artificial market limitation and creates a barrier to competition.  Artificial limitations to the market allow the patent owner to manipulate price against the market standard price, allowing the patent owner to make abnormal profits.

The anti-retroviral drug for HIV/AIDS was launched in US in 1996. This drug turned a virus that was a death sentence into a chronic condition. With the selling price of this drug, a lot of countries could not afford it. Countries like India and South Africa could only afford the drug in 2004. This was after millions of people had died from the illness.

The two vaccines used in treating infant pneumonia have patents belonging to Pfizer and GlaxoSmithKline. Most children in developing countries continue to die from the ailment every year while the vaccines they cannot afford continue to generate billions of dollars annually to these companies.

There are possibilities that a Covid-19 vaccine will be encumbered with several patents as vaccines are now big business. Patent right monopolies have also restricted access to Covid-19 tests and treatment. For example An American multinational company-3M holds more than 400 patents for respiratory protection equipment in the United States, thereby restricting who can produce and supply same in the United States. United States Politicians have called on 3M to release its patents during the pandemic so production can be increased. With acute shortage of test kits for Covid-19, a French diagnostic manufacturer submitted a test kit to the US FDA for emergency approval to sell same in the United States, 3M sued the company and FDA for patent infringement, the suit was later withdrawn.

Most of the likely treatments for Covid-19 undergoing clinical trials have patents attached to them. Remdesivir, a medicine developed for Ebola by Gilead have major patents across the world that will last till 2038. Favipirator used to treat influenza, Iopinavir and Ritonavir sold under the brand name Kaletra to treat HIV/AIDS have patents in force.

Following the devastation cause by the Covid-19 pandemic, countries have adopted proactive and pre-emotive measures to forestall the overbearing effect of patents on the drugs or vaccines for the virus.

One of those measures been adopted is Compulsory licensing of patents. This is a legal measure by which countries can suspend patents on a product for public interest. Chile declared that the pandemic justifies the use of compulsory licensing. Israel issued compulsory licenses for Iopinavir and Ritonavir, while Ecuador approved a resolution that asks the Minister of Health to issue compulsory licenses over all patents related to Covid-19. Canada and Germany have also amended their patent laws to enable swift grant of a compulsory license, while Brazil is in the process of amending its patent law to make licensing easier.

These measures are State based, it requires an individual State to make such laws or modifications that will suspend the monopoly created by the various patent laws in the country were such products are patented. It has also been observed that patent law may not be the only legal obstacle that may prevent access to Covid-19 treatment, several auxiliary legislations may also contribute.

Costa Rica recently submitted a proposal to the World Health Organization (WHO) for a global Covid-19 technology pool, this is a scheme where all the necessary intellectual property, such as patents, design, trade secrets and software could be brought together. The aim of this is to encourage governments to share innovations and make them available globally. Netherland and the United Kingdom have supported this proposal while UNITAID has pledged to finance it.

Other ways of mitigating the monopolistic stronghold of pharmaceutical companies in the treatment and vaccines for Covid-19 is the funding of government health research and development (R&D) and other government health institutions.

The U.K. government has spent more than £300 million on research into corona virus vaccines, treatment, diagnostic kits, with £250 million going to the Coalition for Epidemic Preparedness Innovations (CEPI) alone. The mandate of the CEPI is to help speed up the development of vaccines and enable access to them during outbreaks. The U.K also pledged around $25 million in public funding for the Oxford University project and an additional $27 million to research initiatives at Imperial College to find a vaccine.

Civil Rights Organizations in U.K. have advocated for public interest conditions on all corona virus research funding to ensure universal access and affordability. It also asked the U.K. to support Costa Rican proposal for the W.H.O to create a global pool for rights in Covid-19 related technologies.

The Nigeria Government received donations of about N25.8 Billion Naira from its citizens, corporate and individuals. The chunk of this money is channeled towards provision of Personal Protective Equipment (PPE) for the health workers, building of isolation and treatment centres and tracing of infected patients.

None of this money is channeled to research and development to find the cause, treatment and vaccine for Covid-19. The Nigeria Government has not made any commitment in this regard. Neither the Nigeria Centre for Disease Control (NCDC) nor any of our teaching hospitals or health research institutes had received a substantial amount of money annually to make health research on community medicine or any other area of medicine.

The Covid-19 pandemic created an opportunity to assembly our scientists, physicians, pharmacists, pharmacologists (etal), both in orthodox or traditional medicines with the aim of making a head start in health innovations and inventions.

In Nigeria, patents are granted under the Patents and Designs Act of 1970. The purpose of patenting in Nigeria is purely economic. Patent in Nigeria is granted to encourage technological development, it assures an inventor of a monopoly right to exploit the invention for a limited period of time. Our patent law ensures that such invention could improve the quality of life of its citizenry and is exploited to the goods of the greatest number of people.

Beside intellectual property protection, Nigerian law does not favour monopoly of production or distribution of goods or services of any description within the economy.  Section 76 of Federal Competition and Consumer Protection Act 2018 (the Act) empowers Federal Competition and Consumer Protection Commission (the Commission) in Nigeria to investigate cases of perceived monopoly. The Commission may refer its findings to the Tribunal established under the Act, which may, on the basis of the Commission’s finding, mete out penalties to entities in deserving instances.

Therefore, in Nigeria, if the treatment and vaccine for Covid-19 is found on our soil, there is no patent right monopoly that will prevent its deployment and use for the common good of the populace.

We can conclude that given that this is a pandemic, no corporation can afford to wield the stick for a Covid-19 monopoly. If Covid-19 treatments and vaccine is free from monopoly control, it will reach everyone. If this happens – and it’s still a big if – we might realize that such a patent monopoly free system is not only what we need to survive Covid-19, but also what we need to survive other diseases.

Athan Uzogarah, Esq.
A Lawyer writes from Lagos-Nigeria

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