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Are dirty deals being made behind the scenes over a Coronavirus vaccine?

By Nicole Murdoch - posted Monday, 25 May 2020


French pharmaceutical giant Sanofi's CEO, Paul Hudson, sparked debate last week when he stated that the US market would be given priority for pre-orders of any vaccine for the Coronavirus developed by Sanofi because the USA had "invested in taking the risk". It's a curious statement given that Sanofi is a French pharmaceutical giant. This French company was choosing to prioritise the citizens of another country over its own nation's citizens, and using the pretence of the US's investment in the project. That is despite the clear and undeniable fact that Sanofi itself must have invested in taking the risk. CEO Paul Hudson has now backed down from his earlier position and is vowing equal access for everyone.

While global scientists and medical researchers race to find a cure for the coronavirus, the greater challenge may be in governments sharing patent rights to make a cure or vaccine affordable and available to all. We should indeed be worried about possible secret back room deals involving a coronavirus vaccine. The Sanofi debate raises the question of what dirty deals may have been done to ensure the US obtains first rights to a cure for COVID-19. And a further question, will first rights make any difference whatsoever?

In the normal model of pharmaceutical development a patent would be obtained for the treatment, granting the pharmaceutical company a monopoly over the treatment. This would mean the pharmaceutical company had the right to exploit the patent and manufacture and distribute the cure as it sees fit, including excluding others. However, these are very strange times.

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Technically the Crown could exploit a loop hole in Australian law to ensure it can manufacture and distribute any vaccine. Under Australian law the Crown could exploit the Crown Use exception and force the patent holder to licence the patent to the Australian government. In March a team of Australian researchers claimed they'd found a possible cure, with University of Queensland Centre for Clinical Research director Professor David Paterson telling the media that one of their medications given to some of the first people to test positive for COVID-19 in Australia had already resulted in "disappearance of the virus" and complete recovery from the infection.A big focus now will be on patenting a cure once it is created. The spectre looming is that some global financial heavyweight will exploit the cure and make trillions from it – such as Sanofi. The fear is also that the heavyweight will attempt to hold the cure back from others. 

We are being warned to prepare for the "long haul", with the possibility that the extreme measures that have been implemented, such as social distancing and border closures, could last for up to 18 months until a coronavirus vaccine is fully developed.This warning has raised the question of who would benefit financially from the patent rights to any vaccine. The hunt is on worldwide, but we need to appreciate that, in Australia certainly, there is an exception in the Patents act for Crown use.

The exception originated in war time so that in times of war the Crown could exploit intellectual property – for a fair price. If our population is at risk, the Government could step in and make use of the cure or vaccine. However we believe Australia would likely ensure any cure or vaccine found here was shared around the world.

A virus cure is a form of intellectual property and as such, can be legally protected and sold. But according to ABC reports there's a push for governments and pharmaceutical companies to pool intellectual property rights to allow widespread, low-cost manufacturing of any vaccine that is developed. This issue is on the agenda at the next virtual meeting of the World Health Assembly (WHA), the governing body of the World Health Organization (WHO). The European Union has prepared a draft resolution for voluntary pooling, but prominent international leaders and non-government organisations (NGOs) want it to be mandatory. The Australian Government supports global co-operation during the pandemic.

The ABC has reported that under the EU proposal, any government, pharmaceutical company or organisation developing COVID-19 vaccines or tests could choose to give the intellectual property to the WHO. The WHO would then license production at affordable prices by manufacturers around the world. This has previously been done with the Meningitis A vaccine, and allowed it to be produced for as little as 40 cents per dose.

However more than 100 current and former leaders of nations and international institutions and leading researchers have called for mandatory worldwide sharing of all COVID-19 related knowledge, rather than a voluntary sharing of it. If that occurs there will be no need for the Crown to rely upon the Crown use exception. The vaccine or cure, no matter who discovered or developed it, would become available to all at an affordable price.

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About the Author

Nicole is an intellectual property and patent lawyer and principal at EAGLEGATE Lawyers in Brisbane.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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