If They Wanted To, They Would: Cuba's cosmopolitan approach to patents in pharmaceuticals


Katherine Pindera, Saint Mary's University

Global distribution of vaccines against SARS-CoV-2 during the COVID-19 pandemic has been disappointing. The industrialised Western countries developed and patented their vaccines to mitigate the virus, barring the rest of the world from being able to access these necessary products; with little infrastructure available in health care to provision remedies to mitigate diseases in general—nevermind the research, development, and trials needed to produce pharmaceutical products— developing countries were left on their own to weather the transmission. In 2020 at the multilateral forum of the World Trade Organisation (WTO) developing countries called for a waiver on the provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a multilateral agreement provisioned by the WTO that deals with the trade of goods in intellectual property, on which much of the blame has been placed by these industrialised Western countries. Despite the loud calls for a waiver on the Agreement on TRIPS by developing countries, and echoed globally by civil-society organisations, there has been only incremental progress by way of global distribution of the vaccines required to mitigate the transmission of the SARS-CoV-2 virus. Notwithstanding the failure at the multilateral level to address the incapacity of developing countries and apparent inability of industrialised countries to provision the needed vaccines, Cuba and its patent office successfully distributed both domestically and, through a transfer of the technology, their homegrown patented vaccine against the virus during the height of the pandemic. The findings of this qualitative study demonstrate that Cuba, still firmly in accordance with the provisions in the Agreement on TRIPS, has successfully legislated its national patent system to provision the Right to Health by providing access to vaccines both domestically and, in the case of a global public health emergency such as the COVID-19 pandemic, internationally when the ability of a country to produce the needed product is insufficient or nonexistent, whilst still offering the protection and incentive conferred through patent issuance. The structure of the Cuban national patent system can be considered a cosmopolitan approach to providing access to health care; this theoretical approach, cosmopolitanism, emphasises that, like the idea of a national community, we in the global human community need to develop habits that foster coexistence and that as humans, we have obligations to each other that require that we place value upon human lives, and namely of particular human lives, thus placing significance on the privileges and hardships that others do or do not face. In addition, a harmonisation of national patent offices (of which Cuba is not devoid from) through technocratic trust building with the industrialised Western countries (Drahos, 2010) and a global ratcheting of new norms and standards in IP law has been occurring rapidly through the provisioning of predatory bilateral agreements between the Western and developing countries; this has contributed to a decline of developing countries’ ability to autonomously make decisions when it comes to patent issuance and the trade of IP. It is imperative, if we are to sustain our shared future, that access to required goods is possible especially in the face of extreme global circumstances such as the COVID-19 pandemic. This research recognises the interconnectedness of human existence through its utilisation of the cosmopolitan approach to investigating the role of patent issuance in the provisioning of health care and access to pharmaceutical goods. Although the research is focused on the role of IP in provisioning access to goods required for public health, the implications of its findings extend beyond this into accessing any necessary goods on which a patent has been issued. 

This paper will be presented at the following session: