WTO declines to waive TRIPS provisions for COVID-19 drugs

Representatives of South Africa and India have again tried and failed to persuade the World Trade Organization (WTO) to waive IP rights related to COVID-19 treatments and vaccinations.

According to Reuters, the discussions occurred during a closed-door meeting of the WTO’s Council for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on Tuesday, January 19.

The landmark proposal to suspend provisions of TRIPS for COVID-19 drugs was first discussed in October 2020, as reported by LSIPR. South Africa and India has sent a letter to the WTO, arguing that certain parts of TRIPS may prevent or delay access to essential medical products in the fight against COVID-19.

The two countries asked the WTO to cede some stipulations governing IP so that treatments to combat COVID-19 can become more widely available, particularly in low-income countries. According to them, IP is one of the main stumbling blocks in ensuring fair access to essential drugs.

They argued that, if such a waiver is granted, it should continue until widespread vaccination had occurred globally and most of the world’s population had developed an immunity to COVID-19.

If agreed, the waiver would suspend the implementation, application, and enforcement of certain IP rights, including patents on pharmaceutical products.

A number of countries opposed the proposal, including the UK, the US, and Switzerland. The UK argued that it had not been proven that IP had so far curbed the availability of vaccines and therapeutics during the pandemic.

At the meeting in October, talks on the issue stalled after members of the WTO declined to suspend provisions of TRIPS.

Voluntary licences ‘insufficient’

Ahead of last week’s meeting, supporters of the waiver filed a 30-page document to address the questions and concerns raised by members in October. The document was signed by Bolivia, Eswatini, India, Kenya, Mozambique, Mongolia, Pakistan, South Africa, the Bolivarian Republic of Venezuela, and Zimbabwe.

In the filing, the members claimed that the encouragement of voluntary licences has already been proven as “insufficient” and the prices of some COVID-19 drugs, including Remdesivir, remain prohibitively high for most developing countries.

“Voluntary licenses offered by patent-holding pharmaceutical corporations also tend to exclude millions of people from access to more affordable treatments,” they said.

In response to claims that IP is a help and not a hindrance in the context of ending the pandemic, they argued that it is COVID-19—not IP—that has mobilised the collaboration of multiple stakeholders, and that public funding—not IP—has furthered these joint research and development efforts.

They added that emerging IP disputes threaten the development and supply of COVID-19 medical products.

Despite these pleas, last week’s meeting of the Council for TRIPS appears to have gone the same way as the October meeting, after two trade sources familiar with the discussions confirmed that there was no shift in the positions of the WTO’s members.

The WTO has already launched a Technology Access Pool which collects patent rights, regulatory test data, and other information that can be shared to develop drugs, vaccines, and diagnostics to combat the pandemic.

According to the document filed by supporters of the waiver earlier this month, “not a single company has committed to the voluntary COVID-19 Technology Access Pool of WHO”.

On Thursday, January 25, LSPN Connect hosts ‘ Collaboration in The Time of COVID-19’, featuring the head of Pfizer’s global vaccine programme plus senior IP lawyers from Oxford Innovations and Pinsent Masons.

In an article for WIPR published late last year,  Sir Robin Jacob said that “the reality is that IP has little to do with coping with the crisis”.

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories sent like this straight to your inbox.