COVID-19: Why we don’t need to suspend patents on vaccines

Nationally and internationally, there are instruments to make necessary technologies legally available, such as compulsory licensing. Suspending patent protection does not increase the availability of vaccines.

By now, it is safe to say that everyone in Germany who wants to is vaccinated against COVID19. The German vaccination rate is far above the world average. Especially developing and newly industrialized countries can only dream of such figures at present.

Because of this inequality, calls for a loosening, even a suspension of patent protection for these vaccines are becoming increasingly louder. Not least the American President Joe Biden announced that in the face of this “human catastrophe” a temporary suspend of vaccine patents had to be effected. India and South Africa have already called for the suspension of the TRIPS agreement for COVID-19 vaccines. This would imply that patent protection would be eliminated worldwide and, moreover, no royalties would have to be paid. The discussion seemed to be over. Former German Chancellor Dr Angela Merkel had once again articulated her adverse position in her last government statement on 24.06.2021. She explicitly confirmed that she considered a politically obtained suspension of patents to be the wrong way to go. Production had to be increased on the basis of licences. The Chancellor argued that the world will continue to depend on vaccines being developed in the future. This could only succeed if the protection of intellectual property was not suspended.

At the same time, the pressure seems to have decreased now that the European Union, together with the vaccine manufacturers, has made extensive commitments for the supply of vaccine. However, voices keep flaring up that want to suspend patents in order to supposedly make the vaccine more globally available as a result. Most recently, for example, prominent speakers of the Party Die Linke demanded during the discussion of compulsory vaccination in the German Bundestag, to suspend patents on vaccines. You can see the current demand of the Party Die Linke here.

The will behind these demands to give everyone access to vaccines is essential and must be a matter of course. To achieve this, however, the right – or at least an effective – way must be chosen. In the process, we must also take a look into the future. Patents ultimately also serve to encourage research and innovation. With a view to future pandemics, this innovative power could be constrained in a very decisive way if we now shake the confidence of companies and investors in their intellectual property.

It is highly uncertain whether suspending patent protection can achieve the desired goal at all. Can the shortage of vaccine doses be solved by putting the recipe for a vaccine into the hands of companies all over the world? Have we not seen, even in the small circle of current vaccine manufacturers, that it is not technical know-how that prevents mass production? The problem is the lack of production space, material and skilled personnel. Not every company can produce a vaccine from one day to the next if it only has the recipe in its hands. It can take several months to set up a single plant. Moreover, a patent specification does not contain all the know-how that is actually required to manufacture the product. If one wants to go so far as to also suspend the protection of know-how, one would have to ask oneself how one actually intends to get hold of this knowledge. Against this background, it is doubtful whether the suspension of patent protection could have any effect at all on the current pandemic.

Suspending patent protection is therefore not a solution. This would massively interfere with the rights of the companies and at the same time cannot increase availability (one may also imagine what the future reaction of the companies would be: no research or no publication of the research results and thus no access to knowledge at all).

Moreover, it is astonishing how quickly intellectual property is devalued. If we talk about the vaccine doses themselves and not about the technology behind them, the discussion comes to an abrupt end. It is unanimously agreed that vaccine doses donated by, for example, the USA to other countries have been paid for beforehand. So far, there have been no calls to force the vaccine manufacturers to give away the vaccine doses free of charge. Similarly, there have been no efforts so far to raid the warehouses of, for example, BioNTech, Pfizer or Moderna. As soon as the knowledge is embodied in a vial, it is “real property”. However, we have decided to protect not only property in rem, but also intellectual property.

German law even provides for the possibility of partially suspending patent protection. The Infection Protection Act grants the possibility of accessing the legal property of vaccine manufacturers. Section 13 of the German Patent Act grants the federal government the possibility to partially suspend the absolute patent protection by order. In concrete terms, this means that it could loosen patent protection to the extent that the patented technology – i.e. the construction manual of the COVID-19 vaccine – can be used by the federal government itself or by third parties (including vaccine-producing private companies) without the consent of the rightholders. The decisive factor here, however, is that according to Section 13 para. 3 German Patent Act, there is a claim to appropriate remuneration against the federal government.

In addition to the voices that want to suspend patent protection, the number of voices calling for the granting of compulsory licences is growing.

The German legislator has already provided for this possibility in Section 24 German Patent Act. According to this, private companies have the possibility to make commercial use of the patented invention within the framework of a non-exclusive right of use. A prerequisite for the grant of a compulsory licence is first of all that licence seekers have made unsuccessful efforts within a reasonable period of time to obtain the consent of the patent owner for commercial use. Furthermore, the grant of a compulsory licence must also be in the public interest.

With regard to medical aspects, the Federal Court of Justice found in a decision in 2017 that such a public interest exists in the distribution of an HIV drug (BGH, 11.07.2017 – X ZB 2/17).

If a compulsory licence is granted, the court will limit the scope and duration to a level that does justice to the existing public interest. In addition, the patent owners are entitled to an appropriate remuneration.

German patent law thus already provides all the necessary instruments to impact on intellectual property in the case of public interest. The decisive difference to the efforts of India, South Africa and the USA is that the patent holders are entitled to appropriate compensation. It is obvious that the vaccines against COVID-19 are goods that must be accessible to all people for the benefit of humanity. This makes it all the more important now, also for the future, to find a way to reconcile the interests of the parties involved. It must continue to be lucrative for companies to invest in the development of medicines and vaccines. At the same time, the corresponding research results must be accessible to everyone.

Suspeding patent protection does not solve the problem of the unequal distribution of vaccines around the world. In the end, this proposal is also not really based on the will to increase the availability of vaccines. The idea behind it is rather to save any licence fees.

Dr Christof Augenstein

Dr Katharina Brandt