The current President of the United States, Joe Biden, has recently declared his support for the proposal presented by the governments of South Africa and India to the World Trade Organization (WTO) to temporarily suspend the industrial property rights of vaccines against the Covid-19 virus, in order to guarantee access to information and technology and to boost the production and commercialization of vaccines in developing countries. 

Brazil did not formally take a stand against or in favor of such initiative and intends to follow an alternative path. The idea would be to expand the global production of vaccines, with the reduction of trade barriers and the identification of idle capacity in different countries, but without disrespecting the intellectual property of third parties.

This is because the vast majority of experts on the subject affirms that, at this moment, the desired initiative will not be effective in accelerating the immunization of the population in developing countries, due to the complexity of vaccines production. In this same sense, the International Association for the Protection of Industrial Property (IAPIP), on May 12, has expressed its opposition to the proposal, stating that there is no evidence that the intellectual property rights constitute a barrier to the access of drugs and technology related to Covid-19, and that “the suspension of protection rights of IP would negatively impact the milestone established in order to reach the objectives mentioned above (drugs and technology related to coronavirus), in medium and long term.”

In other words, in addition to the temporary suspension of industrial property of the pharmaceutical industries, whose financial and innovation investments enabled the creation of the Covid-19 vaccine in less than twelve (12) months – such initiative would have no practical effects, at least in short or medium term, as the technology of these products is still not widespread and is difficult to apply.

See, regardless the current position of the Brazilian Government, the compulsory licensing model already exists in Brazilian legislation (provided for in the Industrial Property Law – Law No. 9,279/96) and it was also used previously, regarding certain drugs against HIV. The provision of compulsory license is provided for in Chapter VII, Section III of the aforementioned law and, in short, it authorizes the "breach of patent" only in cases of national emergency or public interest, provided that the patent holder does not meet this need and without prejudice to the rights of the respective holder.

Thus, the exceptional character of the measure becomes evident, since, otherwise, the credibility of the Government that imposed it remains extremely fragile and may even be the object of discussion in the WTO. Consequently, given the practical difficulties of imposing such measure on vaccines against COVID-19, would it make sense to “fight” for this in an international level?

It is, therefore, necessary to project the effects of this proposal on the current public health situation in Brazil. It is true that the country is moving towards the effective immunization of the Brazilian population, with the approval of emergency use of seven vaccines formulas. However, the desired initiative will not work given the absence of inputs and transport and distribution infrastructure. Furthermore, although the cost of vaccines production is a long-term problem, it does not appear as an impediment at this moment.

Currently, Brazil depends on API manufactured abroad for the vaccines production and would hardly be able to produce it in a completely independent way in the country in short term. Therefore, in order to preserve its international relations and enable an increase in the production of vaccines in Brazil in medium and long term, the collaboration with large pharmaceutical companies and full respect for intellectual property tends to be the best path to be followed to expand the immunization of the Brazilian population.

*The intern Gabriela Mussalan has contribuited to this article.