It may not be a hyperbole to say the COVID-19 vaccines represent one of the greatest achievements in modern medical history. The swift development, distribution and, not the least of which, very nature of the two mRNA vaccines were shining lights amid a dark period. This success, however, opened a new debate: Should the intellectual property (IP) rights of these vaccines be waived, potentially broadening global access?
The commonsense answer appears to be “yes.” A TRIPS waiver, providing the ability to share protected components of these vaccines worldwide, is compassionate and speaks to the continued urgency of the COVID-19 crisis. But there are drawbacks to this approach that threaten the delicate balance between investment and innovation.
IP’s role in health care
From cancers to rare diseases and, of course, deadly viruses, there is no shortage of challenges to surmount in health care. As the long history of medical breakthroughs show, it is innovation that allows us to improve and save lives — and investment is the primary driver of innovation.
Speaking broadly, however, investors like myself are capitalists. We have an obligation to generate a return on the money we invest on behalf of our limited partners. We will shy from risky ventures as part of our discipline. Investors are more likely to fund innovations that have robust IP protection. Strip those protections, a commercial entity may be less likely to develop innovative products, and then there is less of an incentive for investment.
TRIPS waivers can lead to ‘creep’
The TRIPS waiver on the IP behind the COVID-19 vaccines is well-intentioned but may create more problems than it solves. Many nations lack the infrastructure required to produce and distribute these vaccines at scale, so providing access to the vaccine IP does not resolve the core problem of making vaccines available to millions in need. More importantly to the global process for innovation is the potential that the TRIPS waiver opens the door for “creep,” or a gradual chipping away at IP rights on other valuable innovations in healthcare and other industries.
The discussion surrounding TRIPS waivers for vaccines is valid — we’re in a major crisis. But will we eventually move from COVID to, say, heart valves or advances in imaging? Would a waiver on the IP behind those treatments be warranted? What are the criteria to apply a waiver? Who decides? How do you encourage innovation by the private sector if the reward is diminished or non-existent?
I would argue there are ways to both protect IP rights and better help people in need
We already have something of an IP-free process — the government, in conjunction with philanthropic resources. Every year, there is government research, usually focused on basic or core development, that is provided or licensed to companies to create new life-changing innovations. In these scenarios, the companies have access to this research to drive the creation of new inventions to be made available to the public on reasonable terms.
In other instances of national or global crisis, companies have created discounted access to an IP license or provided the product innovation to those in need at cost. This is what we saw most recently with major Pharma companies addressing needs by providing vaccine doses at cost in cooperation with governments and philanthropies around the world.
Preserving IP rights
Can we and should we do more? The answer must be yes. But should we tear down the system that has for centuries driven innovation in the global economy? I for one say no, while recognizing we still have alternatives that are proven to work.
The public doesn’t have a great appreciation of the research, invention, development and entrepreneurial cycle fueled by investment, but we are all tied to the innovations this process yields. Think of it: If Apple gave away its phone technology years ago, would we have an iPhone? Consider America’s opioid crisis: If there is no financial incentive to create treatments, would we have a chance to overcome the predicament?
Absolutely, there is a need for those who cannot afford market prices to have access to new developments, but the notion to give up the process by which we have developed new drugs, technology or software is misguided. The opportunity to monetize our creativeness leads not only to greater innovation but more competition and choice in our system.
Rather than whittle away IP protections, let’s preserve our current model and encourage public-private-philanthropic partnerships to make life-saving innovations available to all those in need.