A must-read article that appeared in the New York Times a couple of days ago details the soaring cost of vaccines and the potentially disastrous public health consequences (some of which are already being felt). This seems an ideal case for compulsory licensing. I would note that under Article 31 (b) of TRIPs the normal condition of compulsory licensing, that "the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time" may be waived in the case of "public non-commercial use". Vaccination programs of public health authorities would clearly count as "public non-commercial use."
The NYT article is US-focused but one can imagine the global consequences are even more severe. The article does allude to some initiatives whereby pharamaceutical companies sell vaccines to least-developed-countries at low prices (the GAVI public private/partnership is one of those the article may be referring to). But the public health implications for countries not eligible for such initiatives are huge. Unfortunately, since they also do some real good, Initiatives such as GAVI tend to obscure one basic root of the problem, which is the incentives and rents confered by patent protection.
Concerted resort to compulsory licensing, or threat thereof, by large countries-BRICs and perhaps others as well -is likely to bring down the price of vaccines considerably (perhaps more than bargains between individual countries and big pharma, though that's just an intuition based on some game-theoretical instincts, and information asymmetries; at a minimum governments should be discouraged from entering into confidentiality undertakings with respect to the deals they receive, and it would be great to have an information exchange about such deals). Concerted action is also likely to be more effective in countering political pressures originating with the pharma lobbies. Of course, as is well-presented in this 2009 WHO/UNICEF study , there are factors that affect the costs of vaccines that are not attributable to the monopoly rents big pharma earns due to patent protection. Nevertheless the NYT article notes the extraordinary profitability of vaccines to big pharma relative to other drugs. The Times observes with respect to just one vaccine, "Pfizer, the sole manufacturer ahd revenues of nearly $4 billion from its Prevnar vaccinelast year, about double what it made from high-profile drugs like Lipitor and Viagra, which now face generic competitors." So clearly the monopoly rents from patent protection are a significant contributor to the problem.
I offer these observations not as an expert on the issue of vaccines and communicable diseases-I'm not by any means that,obviously-but because it seems to me that the TRIPs flexibilities offer one avenue to help address the challenge, and we ought to be starting a discussion about how to bring that in. Mainly, I'd just like to encourage everyone to read the Times piece and think about how international economic law can be part of the solution not the problem.