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Pfizer Helped Create the Global Patent Rules. Now It's Using Them to Undercut Access to the Covid Vaccine.

The pharmaceutical company is opposing a proposal at the World Trade Organization to expand vaccine access to poor countries.

Pfizer’s appeals make it sound as though the frame­work of intel­lec­tu­al prop­er­ty rules and phar­ma­ceu­ti­cal monop­o­lies is a com­mon-sense glob­al order whose ben­e­fits to human soci­ety are appar­ent. (Photo by Mario Tama/Getty Images)

Pfizer’s appeals make it sound as though the frame­work of intel­lec­tu­al prop­er­ty rules and phar­ma­ceu­ti­cal monop­o­lies is a com­mon-sense glob­al order whose ben­e­fits to human soci­ety are appar­ent. (Photo by Mario Tama/Getty Images)

The phar­ma­ceu­ti­cal giant Pfiz­er, whose Covid-19 vac­cine with Ger­man part­ner BioN­Tech was approved Decem­ber 11 for emer­gency use in the Unit­ed States, has emerged as a vocal oppo­nent of a glob­al effort to ensure poor coun­tries are able to access the vac­cine. In Octo­ber, India and South Africa put for­ward a pro­pos­al that the World Trade Orga­ni­za­tion (WTO) pause enforce­ment of patents for Covid-19 treat­ments, under the organization’s intel­lec­tu­al prop­er­ty agree­ment, ​Trade-Relat­ed Aspects of Intel­lec­tu­al Prop­er­ty Rights,” or TRIPS. Now sup­port­ed by near­ly 100 coun­tries, the pro­pos­al would allow for the more afford­able pro­duc­tion of gener­ic treat­ments dur­ing the dura­tion of the pan­dem­ic. As wealthy coun­tries hoard vac­cine stocks, and one study warns a quar­ter of the world’s pop­u­la­tion won’t get the vac­cine until 2022, the pro­pos­al — if approved — could poten­tial­ly save count­less lives in the Glob­al South.

But so far, the Unit­ed States, the Euro­pean Union, Britain, Nor­way, Switzer­land, Japan and Cana­da have suc­cess­ful­ly blocked this pro­pos­al, in a con­text where delay will almost cer­tain­ly bring more deaths. The phar­ma­ceu­ti­cal indus­try, con­cerned with pro­tect­ing its prof­its, is a pow­er­ful part­ner in this oppo­si­tion, with Pfiz­er among its lead­ers. ​The (intel­lec­tu­al prop­er­ty), which is the blood of the pri­vate sec­tor, is what brought a solu­tion to this pan­dem­ic and it is not a bar­ri­er right now,” Albert Bourla, chief exec­u­tive of Pfiz­er, declared last week. And in a Decem­ber 5 arti­cle in The Lancet, Pfiz­er reg­is­tered its oppo­si­tion to the pro­pos­al, say­ing, ​a one-size-fits-all mod­el dis­re­gards the spe­cif­ic cir­cum­stances of each sit­u­a­tion, each prod­uct and each country.”

Pfizer’s appeals make it sound as though the frame­work of intel­lec­tu­al prop­er­ty rules and phar­ma­ceu­ti­cal monop­o­lies is a com­mon-sense glob­al order whose ben­e­fits to human soci­ety are appar­ent. But, in real­i­ty, these inter­na­tion­al norms are rel­a­tive­ly recent, and were shaped, in part, by Pfiz­er itself. From the mid-1980s to the ear­ly 1990s, the com­pa­ny played a crit­i­cal role in estab­lish­ing the very WTO intel­lec­tu­al prop­er­ty rules that it is now invok­ing to argue against free­ing up vac­cine sup­plies for poor coun­tries. The ​blood of the pri­vate sec­tor” that Bourla appeals to is not some nat­ur­al state of affairs, but reflects a glob­al trade struc­ture the com­pa­ny helped cre­ate — to the detri­ment of poor peo­ple around the world who seek access to life-sav­ing drugs.

A cor­po­rate campaign

In the mid-1980s, Edmund Pratt, then chair­man of Pfiz­er, had a mis­sion: He want­ed to ensure that strong intel­lec­tu­al prop­er­ty (IP) pro­tec­tions were includ­ed in the Uruguay Round of the Gen­er­al Agree­ment on Tar­iffs and Trade (GATT) talks — the multi­na­tion­al trade nego­ti­a­tions that would result in the estab­lish­ment of the WTO in 1995. His cal­cu­lus was sim­ple: Such pro­tec­tions were vital for pro­tect­ing the glob­al ​com­pet­i­tive­ness” — or bot­tom line — of his com­pa­ny and oth­er U.S. indus­tries.

In reality, these international norms are relatively recent, and were shaped, in part, by Pfizer itself.

To his great advan­tage, Pratt had con­sid­er­able insti­tu­tion­al pow­er beyond his imme­di­ate cor­po­rate rank. As authors Cha­ran Dev­ereaux, Robert Z. Lawrence and Michael D. Watkins note in their book, Case Stud­ies in U.S. Trade Nego­ti­a­tion, Pratt served on the Advi­so­ry Com­mit­tee on Trade Nego­ti­a­tions for the Carter and Rea­gan admin­is­tra­tions. In 1986, he co-found­ed the Intel­lec­tu­al Prop­er­ty Com­mit­tee (IPC), which would go on to build rela­tion­ships with indus­tries across Europe and Japan, meet with offi­cials from the World Intel­lec­tu­al Prop­er­ty Orga­ni­za­tion of the Unit­ed Nations, and lob­by aggres­sive­ly — all for the pur­pose of ensur­ing IP was includ­ed in the trade negotiations.

Both glob­al­ly and domes­ti­cal­ly, Pfiz­er played an impor­tant role in pro­mot­ing the idea that inter­na­tion­al trade should be con­tin­gent on strong intel­lec­tu­al prop­er­ty rules, while cast­ing coun­tries that do not fol­low U.S. intel­lec­tu­al prop­er­ty rules as engag­ing in ​pira­cy.” As Peter Dra­hos and John Braith­waite note in their book Infor­ma­tion Feu­dal­ism, ​Like the beat of a tom-tom, the mes­sage about intel­lec­tu­al prop­er­ty went out along the busi­ness net­works to cham­bers of com­merce, busi­ness coun­cils, busi­ness com­mit­tees, trade asso­ci­a­tions and busi­ness bod­ies. Pro­gres­sive­ly, Pfiz­er exec­u­tives who occu­pied key posi­tions in strate­gic busi­ness orga­ni­za­tions were able to enroll their sup­port for a trade-based approach to intel­lec­tu­al property.”

It was not a giv­en, at the time, that intel­lec­tu­al prop­er­ty would be includ­ed in trade nego­ti­a­tions. Many Third World coun­tries resist­ed such inclu­sion, on the grounds that stronger intel­lec­tu­al prop­er­ty rules would pro­tect the monop­oly pow­er of cor­po­ra­tions and under­mine domes­tic price con­trols, as explained in Case Stud­ies in U.S. Trade Nego­ti­a­tion. In 1982, Indi­an Prime Min­is­ter Indi­ra Gand­hi told the World Health Assem­bly, ​the idea of a bet­ter ordered world is one in which med­ical dis­cov­ery will be free of all patents and there will be no prof­i­teer­ing from life and death.” The Chris­t­ian Sci­ence Mon­i­tor report­ed in 1986, ​Brazil and Argenti­na have spear­head­ed a group that has blocked US attempts to include intel­lec­tu­al prop­er­ty pro­tec­tion in the new round of talks.”

But Pratt had pow­er­ful allies, includ­ing IBM chair­man John Opel, and their efforts played an impor­tant role in secur­ing the inclu­sion of TRIPS — which sets intel­lec­tu­al prop­er­ty rules — in the GATT nego­ti­a­tions. Pratt, for his part, took some cred­it for the devel­op­ment. ​The cur­rent GATT vic­to­ry, which estab­lished pro­vi­sions for intel­lec­tu­al prop­er­ty, result­ed in part from the hard-fought efforts of the U.S. gov­ern­ment and U.S. busi­ness­es, includ­ing Pfiz­er, over the past three decades. We’ve been in it from the begin­ning, tak­ing a lead­er­ship role,” Pratt declared, accord­ing to the book, Whose Trade Orga­ni­za­tion? A Com­pre­hen­sive Guide to the WTO.

Dur­ing the TRIPS nego­ti­a­tions, the IPC played an active role in orga­niz­ing cor­po­rate lead­ers in the Unit­ed States, as well as Europe and Japan, to sup­port strong intel­lec­tu­al prop­er­ty rules. By the time the WTO was for­mal­ly estab­lished, and the TRIPs Agree­ment con­clud­ed, Pratt was no longer chair­man of Pfiz­er. But his con­tri­bu­tion, and the role of Pfiz­er, was still strong­ly felt. As Dev­ereaux, Lawrence and Watkins note, one U.S. nego­tia­tor said it was Pratt and Opel who ​basi­cal­ly engi­neered, pushed, and cajoled the gov­ern­ment into includ­ing IP as one of the top­ics for nego­ti­a­tion” in the first place.

The WTO’s TRIPS Agree­ment, which went into effect in 1995, would go on to be the ​most impor­tant agree­ment on intel­lec­tu­al prop­er­ty of the 20th cen­tu­ry,” Dra­hos and Braith­waite write. It brought most of the world under min­i­mum stan­dards for intel­lec­tu­al prop­er­ty, includ­ing patent monop­o­lies for phar­ma­ceu­ti­cal com­pa­nies, with some lim­it­ed safe­guards and flex­i­bil­i­ty.

Dean Bak­er, econ­o­mist and co-founder of the Cen­ter for Eco­nom­ic and Pol­i­cy Research (CEPR), a left-lean­ing think tank, tells In These Times, ​TRIPS required devel­op­ing coun­tries, and coun­tries around the world, to adopt a U.S.-type patent and copy­right rule. Pre­vi­ous­ly, both had been out­side trade agree­ments, so coun­tries could have what­ev­er rules they want. India already had a well-devel­oped phar­ma­ceu­ti­cal indus­try by the 1990s. Pre-TRIPS, India did­n’t allow drug com­pa­nies to patent drugs. They could patent process­es, but not drugs.”

Cut­ting off access to medicines

TRIPS brought prof­its to phar­ma­ceu­ti­cal com­pa­nies and ​raised phar­ma­ceu­ti­cal costs in the U.S. and fur­ther restrict­ed the avail­abil­i­ty of life­sav­ing drugs in WTO devel­op­ing coun­tries,” accord­ing to cor­po­rate watch­dog group Pub­lic Cit­i­zen. This dynam­ic played out ruth­less­ly dur­ing the AIDS cri­sis, which was in full swing as the WTO was cre­at­ed. ​It took the South African gov­ern­ment almost a decade to break the monop­o­lies held by for­eign drug com­pa­nies that kept the coun­try hostage, and kept peo­ple there dying,” wrote Achal Prab­ha­la, Arjun Jayadev and Dean Bak­er in a recent piece in the New York Times.

One could make a map of global poverty, lay it over a map of vaccine access, and it would be a virtual one-to-one match.

It is dif­fi­cult to think of a clear­er case for sus­pend­ing intel­lec­tu­al prop­er­ty laws than a glob­al pan­dem­ic, a posi­tion that is cer­tain­ly not fringe in today’s polit­i­cal con­text. In addi­tion to a swath of glob­al activists, main­stream human rights groups and UN human rights experts have added their voic­es to the demand for a sus­pen­sion of patent laws. Their calls fol­low the glob­al jus­tice move­ment of the 1990s and ear­ly 2000s, which focused on the tremen­dous role of the WTO, along with oth­er glob­al insti­tu­tions like the World Bank and Inter­na­tion­al Mon­e­tary Fund, in expand­ing the pow­er of cor­po­ra­tions to under­mine domes­tic pro­tec­tions, from labor to envi­ron­ment to pub­lic health. The out­sized pow­er of the Unit­ed States and U.S. cor­po­ra­tions in the WTO — on dis­play in the block­ing of the pro­pos­al for a patent waiv­er — has been a key point of criticism.

Pfiz­er is not alone in stak­ing out its oppo­si­tion to paus­ing intel­lec­tu­al prop­er­ty rules. Phar­ma­ceu­ti­cal indus­try trade groups and indi­vid­ual com­pa­nies — includ­ing Mod­er­na, which is behind anoth­er lead­ing Covid-19 vac­cine — have all come out in full force against the pro­pos­al for reprieve from strin­gent intel­lec­tu­al prop­er­ty rules.

The influ­ence of the phar­ma­ceu­ti­cal indus­try is enor­mous,” Bak­er tells In These Times. ​Need­less to say, Trump is going to go with the phar­ma­ceu­ti­cal indus­try. Even Biden is going to be hear­ing from the phar­ma­ceu­ti­cal indus­try and will be hard pressed to do some­thing they don’t like. There’s no one oth­er than the phar­ma­ceu­ti­cal indus­try who’s going to stand up against this. They’re the ones that are push­ing it.”

The phar­ma­ceu­ti­cal indus­try is fight­ing to hoard life-sav­ing infor­ma­tion about vac­cines and Covid-19 treat­ments despite the tremen­dous role of pub­lic funds in enabling their devel­op­ment. Pfizer’s part­ner BioN­Tech, for exam­ple, received sig­nif­i­cant pub­lic fund­ing from Ger­many. But at an esti­mat­ed cost of $19.50 per dose for the first 100 mil­lion dos­es, the vac­cine is like­ly too cost­ly for many poor coun­tries, par­tic­u­lar­ly in light of its expen­sive stor­age require­ments. Phar­ma­ceu­ti­cal com­pa­ny AstraZeneca, which pro­duced a vac­cine with Oxford, has made some com­mit­ments to increase access to poor coun­tries, and it says it won’t make a prof­it from the vac­cine dur­ing the pan­dem­ic. But it ​has retained the right to declare the end of the pan­dem­ic as ear­ly as July 2021,” Prab­ha­la, Jayadev and Bak­er note.

Indeed, the data emerg­ing indi­cates what could have been pre­dict­ed months ago: One could make a map of glob­al pover­ty, lay it over a map of vac­cine access, and it would be a vir­tu­al one-to-one match. ​The U.S., Britain, Cana­da and oth­ers are hedg­ing their bets, reserv­ing dos­es that far out­num­ber their pop­u­la­tions,” the New York Times reports, ​as many poor­er nations strug­gle to secure enough.” This is a log­i­cal out­come for a sys­tem designed from the onset to rein­force long-exist­ing pow­er struc­tures informed by an entrenched lega­cy of colo­nial­ism. Regard­less of ​intent,” once again major­i­ty black and brown coun­tries, by and large, are left to suf­fer and die while wealthy Glob­al North coun­tries far exceed their need­ed capac­i­ty (although this is no guar­an­tee of equi­table dis­tri­b­u­tion with­in Glob­al North countries). 

Giv­en the risk that we could see a glob­al apartheid of vac­cine dis­tri­b­u­tion, in which poor coun­tries con­tin­ue to face dev­as­tat­ing loss while rich coun­tries pur­sue herd immu­ni­ty, vague assur­ances of cor­po­rate benev­o­lence are not enough. As Bak­er puts it, ​Why would­n’t you want every vac­cine avail­able as wide­ly as possible?”

Frank Car­ber and Han­nah Faris con­tributed research to this article.

Sarah Lazare

Sarah Lazare

Sarah Lazare is web editor at In These Times. She comes from a background in independent journalism for publications including The Intercept, Common Dreams, The Nation, and Tom Dispatch. She tweets at @sarahlazare.

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