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Final production of filled vials of COVID-19 vaccine. Credit: James Thew - stock.adobe.com

Abolish patent rights. Grant IP waivers. Open Covid-19 intellectual property. The development of Covid-19 vaccines has elicited very real fears of unequal access—and with them, growing calls to waive intellectual property (IP) enforcement for these lifesaving drugs. However, while legal mechanisms like compulsory licensing hold some promise in addressing these concerns, the proposals oversimplify and ignore crucial non-IP challenges to the effective delivery of Covid-19 vaccines, such as infrastructure disparities and lack of a fully functioning public health system.

The United States conceptualizes patents as private property: government-sanctioned monopolies without any obligation to practice the invention. An inventor who secures a patent may commercialize, license, or do nothing at all with her patent. Even if she does nothing herself, she may still assert her rights to prevent others from commercializing it. These deadweight losses created by patents are justified on the basis that full public disclosure of the invention is sufficient as a public good. Ostensibly, a 20-year exclusivity period incentivizes innovation. In the pharmaceutical industry, monopoly profits ostensibly offset the high costs and risks of bringing a drug to market—between $314 million and $2.8 billion in research and development (R&D).

In the context of the Covid-19 pandemic—where vaccine patents are held by U.S. and European companies—many are concerned that IP barriers would render vaccines inaccessible and too expensive for developing countries. To address this concern, some people advocate waiving IP enforcement altogether. Under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), governments may allow compulsory licensing in emergency situations or temporary imports of a patented product from a third-party country that infringes the patent.

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