is Director of the Health Law Institute at the Schulich School of Law, and , Professor of intellectual property and innovation, Faculty of Law and Faculty of Medicine and Health Sciences, .
Since late 2020, . But a remarkable achievement earlier this month offers hope that the supply of vaccines to developing countries will improve: Afrigen Biologics, a South African based company, produced its of Moderna鈥檚 mRNA COVID-19 vaccine. This was achieved with no support from Moderna or Pfizer-BioNTech, the manufacturer of the other mRNA vaccine.
What many don鈥檛 realize is that two Canadian companies control a key component of the mRNA vaccines. Busy fighting over their lucrative , there is no sign they shared their technology with Afrigen either.
The two companies in question 鈥� and Arbutus Biopharma 鈥� are based in Vancouver, B.C., and have strong ties to the . They have been lauded for their positive 鈥溾�� in combating the pandemic.
But that impact seems to stop short of sharing their technology with Afrigen and other would-be suppliers of COVID-19 vaccines in the Global South.
Protecting patents and profits
The mRNA vaccines are incredible innovations and the culmination of . They work because of something called 鈥渓ipid nanoparticles,鈥� (LNPs) which deliver the mRNA to its target. LNPs are also the result of of publicly funded research, spearheaded by scientists at the University of British Columbia and further developed by companies like Arbutus and Acuitas.
As we show in , the long road to developing LNPs is littered with . In the 1990s, Pieter Cullis, a biochemist at UBC, worked alongside Ian MacLachlan, , and Thomas Madden at a company called Inex.
Years later, they split up. In 2008, Madden was pushed out. He then formed a new outfit with Cullis, which became Acuitas. This precipitated between Acuitas and the company now known as Arbutus, UBC and various commercial partners, including Moderna.
Through the pandemic, Moderna and Arbutus have continued to fight over several LNP patents, with , when its appeal was rejected by the U.S. Federal Court of Appeals. Arbutus has since turned around and . Meanwhile Pfizer just inked a .
Vaccine inequities
Lost in all of this corporate wheeling, dealing and litigating are a number of important questions: Given the scale of the ongoing pandemic, why wasn鈥檛 the LNP technology shared with Afrigen? Why didn鈥檛 the scientists who developed this foundational technology rise to that same task? Why didn鈥檛 Canada, which funded much of the foundational research, have the ability to ensure equitable access? And why didn鈥檛 UBC, , require that the research was made more broadly available?
In short, in the face of vaccine inequity, why not try to help?
The obvious answer is that it鈥檚 not in the companies鈥� financial interests. A new investigation by the British Medical Journal showed by working surreptitiously through a foundation to undermine the World Health Organization鈥檚 newly created 鈥溾�� in South Africa.
The Canadian companies likewise appear to have determined that it is not in their financial interests to assist vaccine makers in low- and middle-income countries. For its part, Acuitas might have been worried that if it shared the LNP technology it would breach its agreements with Pfizer-BioNTech. Having warded off Moderna鈥檚 challenge to its patents, Arbutus is positioned to license its LNP technology to additional partners. Transferring the know-how to Afrigen would diminish the asset鈥檚 value.
Lying beneath these calculations lies a troubling truth: this is exactly how the drug and vaccine innovation system was designed to work. Discover a technology, patent it and then 鈥� regardless of how much public funding supported its discovery 鈥� let the market decide how, and on what terms, its development should proceed.
This system does produce innovations like the mRNA vaccines. But in the ongoing pandemic, firms with innovative technologies use patents and other forms of intellectual property to triple dip: they retain the benefit of public dollars that went into the underlying research, they receive revenues for their product from that same public and they extort poorer countries to pay through the nose for that product.
Meanwhile, would-be producers of public health interventions such as COVID-19 vaccines not only face delays due to limited access to the underlying knowledge, but they also run the risk of being sued for patent infringement.
Fundamental changes to innovation
More details about how Afrigen overcame these challenges to produce its first doses of an mRNA vaccine are apt to emerge in the weeks ahead. Perhaps some scientists, aghast at the abject level of vaccine inequity globally, rebelled and gave Afrigen a helping hand.
However, we doubt that any of these publicly supported Canadian scientists 鈥� who possess the needed know-how 鈥� were among them. Sadly, that is not what our them to do.
In the end, Canada has not been a helpful partner in the global fight against COVID-19. It has failed to mobilize production of COVID-19 vaccines under Canada鈥檚 . It has failed to support a . And Canadian companies, as best we can tell, have failed to help Afrigen scale up production of mRNA vaccines.
If we truly want out of this pandemic, and more equitable outcomes in the next, our innovation laws, policies and practices require fundamental change.
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