intellectual property is the blood of the private sector.”
— Pfizer CEO Albert Bourla, International Federation
of Pharmaceutical Manufacturers & Associations
media briefing; December 8, 2020
From early in the pandemic, there have been sustained calls for the World Trade Organization’s Trade Related Aspects of Intellectual Property (TRIPS) council to approve a blanket waiver on intellectual property and trade secrets related to the production of vaccines and therapeutics developed against COVID-19. In early May the Biden administration appeared to acknowledge these demands, releasing a statement that the U.S. would begin working with member nations to draft final text on waivers related specifically to vaccines, excluding other essential pharmaceutical products like monoclonal antibody therapies. This apparent policy shift from the Biden administration was met in some circles with uncritical adulation. Some months on, however, we are no closer to an end to the ongoing vaccine apartheid. Political pressure from within the United States has been significantly reduced since this endorsement of a “narrow waiver,” leading some to focus instead on securing the reluctant endorsement of countries like Germany that remain opposed.
If we do not increase the pressure and clarity of our demands, it is likely that the Biden administration will be able to emerge from this crisis having successfully appeared to take a position they had no actual interest in defending. If negotiations do advance, the recent history of global intellectual property disputes over pharmaceuticals — and the behavior during the pandemic of one pharmaceutical company in particular, Pfizer — suggests that if the U.S. does take a guiding role in this process, we should be at our most guarded. Rather than working to undo the harms of a vastly inequitable international vaccine rollout, the U.S. may instead use this opportunity to cement the significant advances pharmaceutical capital has managed over the last year.Face the Nation
Nowhere is this advancement in power more clear than in the case of Pfizer. The federal government’s “Operation Warp Speed” contracts with most companies reportedly omitted standard language clarifying the state’s ability to supersede intellectual property protections. In most cases, this hasn’t limited public calls for state seizure. Moderna’s vaccine patent, for example, remains the subject of open criticism, leaving only the federal government to acknowledge and utilize the National Institutes of Health’s (NIH) purported existing stake in the IP. According to one analysis, 97% of the funding towards the Oxford-AstraZeneca vaccine was derived from public sources.
By contrast, Pfizer is often dismissed as a serious target of state patent intervention. Part of this is due to Pfizer’s own pervasive messaging. A common refrain of its executives — frequently regurgitated by the press, and a central focus point of a National Geographic documentary produced as “paid content created for and in collaboration with Pfizer” — is that Pfizer was the sole company who developed their vaccine entirely with private funds. Business press has gone so far as to frame even the Biden administration’s lukewarm embrace of a narrow TRIPS waiver as a kind of phenomenological theft, with the Wall Street Journal proclaiming “Who will invest in future therapies when the White House helps other governments steal?”
This messaging is intended to explicitly center Pfizer’s vaccine as the product of a beneficent private sector (in contrast to an ineffectual public sector), and to distance the company from calls to surrender their property into public hands. “I wanted to liberate our scientists from any bureaucracy,” Pfizer CEO Albert Bourla said in an interview on CBS’s Face the Nation last year: “When you get money from someone, that always comes with strings.”
Pfizer’s private funding narrative depends on an extraordinarily narrow interpretation of state investment in national and global public health. One prominent counter to their claims is the simple fact that Pfizer’s vaccine overwhelmingly relies on decades of publicly funded research. This extends beyond the individual developments that make the mRNA vaccine platform viable, to the very genesis of the design: the development speed Pfizer takes such pride in was made possible by the release of the full genetic sequence for COVID-19 by a team of researchers out of a public university in China.Extrastatecraft
In any case, an initial outlay for development costs means little if the ultimate customer is the state itself. This is where, beyond rote arguments over whether states directly funded pharmaceutical research, Pfizer’s argument entirely falls apart. (For the record, at least one state did: Germany provided Pfizer partner BioNTech €375 million, or roughly half a billion dollars). In recent months the company has netted hundreds of millions of dollars in profit selling exclusively to states, the majority of whom pass doses on to their residents for free. While Pfizer may not have taken direct research and development funding from the U.S., the federal government did move early to preorder $1.9 billion worth of their vaccine doses, which would constitute a risk shelter by even the most generous of reads.
The presumed strength of this bargaining position has led to some outrageously bold behavior by Pfizer executives in recent months, with little to no reciprocal public outcry. Early this year, it was reported that Pfizer’s contracts with Argentina and Brazil asked them to offer assets like embassies or military bases as collateral against the cost of future legal action, to “cover the potential costs of civil cases brought as a result of Pfizer’s own acts of negligence, fraud, or malice.” While some degree of indemnification is common in agreements like this, indemnification from deliberate fraud or malice certainly goes above and beyond in defining the relative power positions here. Pfizer has ingratiated itself in the role of an extrastate actor with power not only equal to but over states.
It is perhaps unsurprising that, as a result, media portrayals of Pfizer CEO Albert Bourla have tended toward the statesmanlike. A March 2021 profile in Bloomberg uses this framing explicitly, describing the company’s process for negotiating deals with states — and which states are able to secure deals for allotments of doses at all — as a matter of whether world leaders are sufficiently capable of getting Bourla on the phone. In the Bloomberg profile, Israel’s ability to so quickly secure doses for its settler colonial population is explained by remarking that then-Prime Minister Netanyahu “boasted in January that he’d spoken with Bourla 17 times, with the CEO even taking his calls at 2 a.m.,” adding for good measure that “Bourla had thrown Netanyahu a political lifeline.” This very public act of statecraft was perhaps later recognized as a vulnerability for Pfizer, as the company has since tried to downplay its own agency in provisioning orders for its own products. On May 7, in the immediate aftermath of the Biden administration’s announcement on the TRIPS waiver, Bourla posted a public letter on his LinkedIn page putting a very different spin on these events, and shifting blame toward a generalized form of vaccine skepticism: “We reached out to all nations asking them to place orders so we could allocate doses for them. In reality, the high-income countries reserved most of the doses . . . most of them decided to place orders with other vaccine makers ... because mRNA technology was untested at that time . . . Some didn’t even approve our vaccine.”
Regardless of this shift in stance, Bourla was until this point very open about his direct role in provisioning vaccine doses — and by extension, influencing global life chances — primarily to major imperial powers. On March 11, he confirmed Netanyahu’s version of events in an appearance on Israeli television, stating: “I was impressed, frankly, with the obsession of your prime minister. He called me 30 times.”
Such statements may be the rare example of an individual taking very public responsibility for matters of global public health but, as with any meeting of heads of state, the conviviality of personal drama masked what was an extremely tactical exchange. In the same appearance, Bourla explained that his selection of Israel as a priority for vaccine shipments had been due in part to its “extraordinary healthcare system” and “very high degree of economic data.” In exchange for global prioritization for vaccine shipments, Israel agreed to exclusively use Pfizer’s vaccine, and to use its national health system to quickly collect and report back population-wide data, allowing Pfizer to both accelerate and outsource huge amounts of labor and capital otherwise required for end-stage clinical trials.
The quality of this data — not to mention the speed at which it has been gathered — can’t be taken lightly; the results that have come out of this overgrown public-private partnership have provided significant resources on the efficacy of Pfizer’s mRNA vaccine. In fact, the breadth of the data produced through this apartheid state partnership almost certainly enabled Pfizer to be the first company to have enough data to reach full FDA approval for its covid vaccine.
Irrespective of the direct role of states in the speed of this process, the pharmaceutical industry and a murderer’s row of capitalists have taken this opportunity to hail the private sector for its apparently unilateral success in delivering a vaccine. Importantly, Pfizer’s arrangement with Israel shows us the opposite: much like we owe so much of our early knowledge of variants to national public health systems like the U.K.’s NHS, if anything could be pointed to as a success here, it’s the coordinating power of simply having a public health system.
What is eminently obscene, however, is the methodology. Where Pfizer’s deal with Israel may have accelerated finalizing some of their real-world observation, they, like every pharmaceutical company who began testing a vaccine candidate, benefitted in earlier trials on the back of enormous state failure. As Jacqueline Miller, Moderna’s senior vice president and head of infectious diseases, told Nature in December of last year, “coronavirus infections [were] so rampant that Moderna was able to reach the primary endpoint of its trial five months earlier than expected.” [Emphasis added]. In other words, because states like the U.S. failed so miserably to respond to COVID, continually deferring action and adamantly refusing a paid shutdown, our strongest non-pharmaceutical intervention against the crisis, the enormous prevalence of COVID transmission radically accelerated how quickly vaccine clinical trial data could be gathered and assessed.
Claims that the speed with which the vaccines were approved was due to the ingenuity of the private sector and astounding miracles of science thus only conceal the material price we have all paid for their existence. We have paid for them in the millions of dead, and the millions more that will die as a direct result of not taking dramatic action to wrest global life chances from the hands of pharmaceutical companies. This is true of COVID, but it is equally true at every last interstice of health and capital, as we regularly establish through our work as Death Panel.Waive of Mutilation
Pfizer’s executives have spoken openly, and frequently, about profits they will be able to achieve once the “pandemic pricing environment” concludes. It even appears they’re already actively moving towards it: one recent contract with the E.U. raised the price per dose by 60%, to €19.50. In a January investor call, Pfizer CFO Frank D’Amelio emphasized that typical vaccine prices are closer to $150 to $175, adding, “we’re in a pandemic pricing environment. Obviously we’re going to get more on price.” As recent months have made it clear that the pandemic is likely to remain with us for the imaginable future, the prospect that the global population will require annual COVID vaccine boosters has transformed from a regular talking point of Bourla’s to official state policy.
There are already signs that allowing Pfizer to so broadly dictate the terms of vaccine distribution could also significantly curtail future efforts to improve the vaccine against emerging variants. In a recent STAT profile of Pfizer’s “variant hunters” team, the company appears to acknowledge that its research and development efforts are weighted towards variants circulating in countries that have already purchased large quantities of vaccine doses. As chief scientific officer for viral vaccines Phil Dormitzer notes, “This also is a product, and so it’s also responding to customers” … “And the main customers are governments — what do they want to see as well?”
Our focus here has been on Pfizer because of the boldness of its actions during the pandemic, and because it has been so effective at socially reproducing the idea that ownership of its vaccine is somehow made inviolable by having sourced private funding for development. All the while, with states as Pfizer’s principal customers, the company is free to adjust their prices with each new supply contract. As states superficially absorb the costs — at least until the emergency is declared “over,” a moment that states like the U.S. appear eager to reach — Pfizer can slowly build its profit and influence, at the expense of continued death.
If we do not act, the power Pfizer and others have gained over the last year will not only calcify, but continue to expand. Pharmaceutical companies enjoy a long and storied relationship to the expansion and maintenance of U.S. imperial power, and as such, we cannot expect the Biden administration’s newly declared interest in the WTO negotiations over a TRIPS waiver to truly confront this issue without significant additional public pressure.
Pharmaceutical patents are far from inviolable. The U.S. enjoys a multitude of ways to break, dispute, or otherwise ignore them. This includes the march in provisions within the Bayh Dole Act, but also, as legal scholar Amy Kapczynski has written, a more robust set of “government use” provisions for patents of all kinds. Beyond this, it may surprise many advocates for the TRIPS waiver that, technically speaking, it is not incumbent on WTO member nations to seek a waiver to the TRIPS agreement before issuing a compulsory license. (A compulsory license is not quite “breaking” a patent, but it is state use of a patent without requiring approval from the patent holder, and can compel the patent holder to share information or technology). The likely reason that member nations do not simply do this in the case of the patents for COVID vaccines and therapeutics is the persistent threat of imperial retaliation baked into the TRIPS arrangement and the WTO itself. To understand how these threats unfold, one does not have to look far back in time.
In 2012, India issued a compulsory license for sorafenib, a cancer drug manufactured by Bayer under the brand name Nexavar. Bayer had been selling the drug in India, but at a cost of $5,500 per person per month. Bayer’s then-CEO, in later reflection on the situation, was very clear what they felt the stakes were:
So we had a patent but somebody else is allowed to make this product and because there is not enough access to this product for poor Indians. I don’t know if you’ve even been to India, there are a lot of poor Indians obviously, and the hospitals aren’t that close by [laughs] to where they live, so we found that this was extremely politically motivated and essentially, I would say, theft. Of the Indian government, of a capability of a company that is patented, and therefore a patent right. [19:10] So now, is this going to have a big effect on our business model? No, because we did not develop this product for the Indian market, let’s be honest. I mean, you know, we developed this product for western patients who can afford this product, quite honestly. It is an expensive product, being an oncology product. But you know the risk in these situations is always spillover. If this generic Indian company is now going to sell this product, then South Africa, and then New Zealand, you never know, you know, how this is going to spillover. And that puts the whole industry and the patent right of an industry at risk.
What happened next is very well documented in a timeline by Médecins Sans Frontières. This document is well worth reading in full, but we will summarize its most illustrative events here. Bayer took action against India not only by taking them to court, but by leaning on the U.S. government’s stakeholder position in global intellectual property enforcement to exert additional pressure. U.S. officials obliged, in defense of Bayer’s property and the intellectual property regime it represents.
Two weeks after India filed its compulsory license, in March 2012, U.S. Commerce Secretary John Bryson flew to New Delhi to meet with India’s Minister of Commerce and Industry. At the meeting, Bryson warned that pharmaceuticals were “a competitive area” for the U.S. and that “any dilution of the international patent regime was a cause for deep concern.”
Three months later, the Deputy Director of the United States Patent and Trademark Office (USPTO) stated in congressional testimony that the compulsory license issued by India was “in violation of the TRIPS Agreement.” (It wasn’t). By May 2013, the U.S. had placed India on a “Priority Watch List” regarding intellectual property. This indicated for a period of several years that an active review of U.S.-India trade was being conducted, explicitly to threaten that the U.S. could move to impose sanctions against India for alleged violations of intellectual property. In July 2013, then-Vice President Joe Biden even worked it into a speech at the Bombay Stock Exchange, saying that “protection of intellectual property [was] a tough challenge for trade between the U.S. and India, and an obstacle in the business environment.”
The regime that undertook these actions — threats of sanctions, which are ultimately threats of war — in order to protect its capital interests cannot be trusted to shepherd COVID vaccines and therapies out of the hands of pharmaceutical companies. Neither can companies like Pfizer, or indeed singular individuals like its CEO Albert Bourla, maintain their positions as proxy state powers unto themselves. The actions undertaken by pharmaceutical companies — and also by state powers that have a stake in their financial success, like the U.S. — cannot be allowed to continue, much less should they be praised. The actions of Pfizer, and of Bourla himself — both making logistical decisions that effectively distribute rationing on a massive scale, on behalf of global public health and in spite of it — are the stuff that foment bloody revolutions when done from a position of explicit state power. We have the opportunity to make COVID the last time.