Brazil seeks “3rd path” to Covid-19 patent/waiver deadlock at WTO

RIO DE JANEIRO, BRAZIL – Between the so-called vaccine nationalism and the broad permission for patent breach in the fight against Covid-19, as proposed by India and South Africa, Brazil will commit to supporting a “third path” as a way to overcome the deadlock in the World Trade Organization (WTO).

The debate revolves around a generalized moratorium on the agreement that regulates intellectual property rights (known by the acronym TRIPS). Organizations such as Oxfam, Human Rights Watch, and Doctors Without Borders are pressuring the Jair Bolsonaro government to join the group coordinated by the Indians and South Africans, which has the support of 55 other countries – including Pakistan, Bolivia, Venezuela, and less developed nations.

Given its resistance, Brazil has been accused of betraying its historical principles. In 2001, under the leadership of José Serra (Health Minister at the time) and Celso Amorim (then ambassador in Geneva), the country played a leading role in the negotiations that culminated in a relaxation of the TRIPS agreement to suspend drug patents. The loophole was used for the compulsory license of an antiretroviral for HIV treatment.

The secretary of Foreign Trade and Economic Affairs at the Foreign Ministry, Ambassador Sarquis Buainain Sarquis, explained the motivations of the Brazilian resistance and said it is wrong to perceive the deadlock in the WTO as a duel of rich against emerging countries. “It is a narrative that does not correspond to the reality of the facts,” he argued.

Other developing nations – Chile, Colombia, Mexico, Turkey – were also identified by the Foreign Ministry as critics of the proposal for a generalized moratorium on the TRIPS agreement to fight the pandemic.

Among Brazil’s reservations is the time and scope of the proposal. Firstly, because the moratorium would cover the entire pandemic period (which could still take months or years). Secondly, because it would not cover only patents or vaccines. Any patent, copyright, design, trademark, or trade secret purportedly linked to Covid-19 could see its protection suspended. This could involve items as diverse as the design of a PFF2 mask or a valve used in ventilation equipment. Another of Brazil’s objections concerns the potential efficacy of the measure. According to the Foreign Ministry’s assessment, in the case of a mere patent suspension, the world will not suddenly witness a significant increase in the manufacturing of immunizers.

According to Bolsonaro, there are more important bottlenecks that have slowed or prevented mass vaccination: lack of supply of pharmaceutical ingredients, limitations of production facilities, the need for technical training of a greater number of countries to provide scale to the production of vaccines.

Finally, explains the ambassador, the Brazilian position considers the legal aspects of the moratorium proposal. On the one hand, this temporary TRIPS suspension could demand legislative endorsement from the countries involved, internalizing these changes – albeit provisional – in their own legislation. On the other hand, patent breaches by individual countries can be done through compulsory licensing.

Under this instrument, a specific country may breach patents without its owner being aware of it. But it must bear the reputational costs of non-compliance with the intellectual property system. However, this does not ensure immediate access to vaccines or medicines. Vaccines are biological drugs, developed from living material, and with processes that are very difficult to copy. At the limit, it can take years.

Sarquis believes that the solution is to focus on a kind of middle term.

This could involve international mobilization for the use of idle installed capacity in any country in the world for the production of vaccines or raw materials, voluntary licensing (resulting from an agreement between the parties) and acceleration of technology transfer agreements, identification of commercial obstacles to enable this increase in production and fast resolution of potential conflicts.

Brazil is considering joining an initiative co-sponsored by Australia, Canada, Norway, New Zealand, Chile, Colombia, and Turkey that calls for the engagement of the WTO Director-General in discussions on these points with country authorities and representatives of pharmaceutical companies that develop technologies.

In Geneva, there are no indications of a forthcoming consensus on Okonjo-Iweala’s proposed “third path.” A diplomatic source summarizes what “third path” means in this case: “It is if pharmaceutical companies are willing to voluntarily waive the patent,” in order to enable additional local production. Another source estimates that under pressure, the industry may accept voluntary licensing, but it will want to control everything and will only license whomever the patent-holding laboratories want.

Source: Valor