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5 May 2022Alex Baldwin

WTO reveals draft of COVID-19 IP waiver

A proposal for the COVID-19 vaccine waiver has been prepared for approval by the wider members of the World Trade Organisation (WTO).

The waiver, first posed by India and South Africa in December 2021, proposes that certain provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) framework be waived for COVID-19 vaccines to ensure equitable access to the treatments for low-to-middle income countries.

Despite receiving the backing of major jurisdictions such as the US, the waiver has been stonewalled at the WTO for 18 months.

But in March this year, the WTO announced that it had reached a “compromised” undisclosed agreement related to the waiver.

On Tuesday, May 3, the WTO published the breakthrough agreement reached by key WTO members the US, EU, India and South Africa.

The announcement said: “In their discussions, the [four jurisdictions] adopted a problem-solving approach aimed at identifying practical ways of clarifying, streamlining and simplifying how governments can override patent rights, under certain conditions, to enable diversification of production of COVID-19 vaccines.”

The proposal will now be sent for consideration by the 164 WTO members.

The document itself poses that a developing country “may limit the rights provided” under Article 28.1 of the TRIPS agreement “by authorising the use of patented subject matter required for the production and supply of COVID-19 vaccines without consent of the right holder to the extent necessary to address the COVID-19 pandemic”.

These countries may authorise the use of patented subject matter through “any instrument” including executive orders, emergency decrees, government use authorisations, and administrative orders.

The proposal also says that the countries “need not require” the proposed user of the patented invention to make efforts to obtain authorisation from the rightsholders.

However, there are still certain areas that the proposal has yet to address, including the duration of the waiver, which has been a key issue for many of its critics.

Waiver opposition

While several other jurisdictions have expressed their support for the waiver, including China and France, the plan will still require a unanimous WTO member vote to pass. Several countries including Switzerland and Japan remain opposed to the idea, which has prevented the waiver from making any headway up to this point.

Among the waiver’s biggest critics are IP lawyers, many of whom are concerned that the proposal could set a precedent for the state to overrule IP rights and threaten current COVID-19 licensing agreements.

Speaking to this, the US Chamber of Commerce released a statement in March from vice president Patrick Killbride saying:

“Dismantling IP rights threatens the licensing arrangements that are enabling rapid global production and technology transfer.

"Any WTO action undermining IP will harm multiple US industries, who are global leaders in their fields, and who depend on IP protections. Any agreement of this kind would bargain away US competitiveness.”

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More on this story

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