Deadlock may once again be the name of the game at the World Trade Organization’s (WTO’s) Council for Trade-Related Aspects of Intellectual Property Rights—TRIPS, for short.

A communication from Switzerland and Mexico questioning the need to extend the waiver on intellectual property rights on COVID-19 vaccines to therapeutics and diagnostics is laying bare the divergences and complexities of one of the most contentious issues facing the organization. 

Readers may remember that the 12th Ministerial Conference (MC12) was hailed as a major success: “The WTO is back,” claimed, in essence, headlines around the world. In the wee hours of a sunny Geneva morning on 17 June, as bleary-eyed delegates concluded their work, they announced, among other agreements, a deal on conditionally waiving patents on COVID-19 vaccines. 

While marking a true milestone in negotiations which had begun in 2020, when India and South Africa introduced a text demanding such a waiver, the agreement, made after intense negotiations, was narrower in scope than the original proposal. If the WTO could claim success, in reality the agreement satisfied no one: its proponents, health activists, and civil society rejected it as too limited, while Big Pharma had fought tooth and nail to prevent any waiver agreement at all.

The June agreement explicitly called for the vaccine waiver to be extended to the “production and distribution of COVID-19 diagnostics and therapeutics” within six months of adoption, setting the deadline for passage of an agreement to December 19—the first business day after 17 December.

With less than six weeks remaining, time is running out. “The level of urgency within the WTO to reach consensus on this issue is difficult to assess,” according to global health writer Priti Patnaik, author of a newly published book on the subject. “A range of countries remain undecided and have sought more information. It is not even clear whether the proponents will go the last mile to fight for this.”

Informal discussions about the extension were held in September but led nowhere. 

Rising concerns

 In a meeting last week in Geneva, the chair of the TRIPS Council, Ambassador Lansana Gberie of Sierra Leone, said that the absence, at this late stage, of concrete, text-based proposals on the issue of the extension is “very concerning,” and urged delegations to explore all options to make progress.

The ambassador will begin reaching out to individual members in the coming weeks to look for areas of possible convergence. South Africa, co-sponsor of the initial waiver proposal, also reported that its delegation has recently been holding bilateral contacts to try to find a way through the impasse.

The only document put forward so far has been a communication submitted on 1 November by Mexico and Switzerland, which does not represent a formal negotiating position. It does, however, raise questions about the ability of the trade body to meet its objective of reaching an agreement by mid-December.

In essence, the Swiss and Mexican communication uses the same rationale already advanced by Switzerland when opposing a waiver for COVID-19 vaccines at the height of the pandemic: a waiver would not, argued Switzerland and its pharmaceutical industry, along with a number of Western countries, accelerate the rate of vaccination in the world, because the main problem lies, the industry claimed, in the manufacturing and distribution of the newly developed vaccines. 

 Today, the two countries write, the same argument can be made, even if in this case, the problem is not one of scarcity but of a surplus of available therapeutics and diagnostics: “No shortage of therapeutics exists. Instead, large parts of innovators’ production capacity remain idle due to lack of demand. […] This involves issues with logistics and distribution, which are not IP-related, but that need to be addressed.”

Three ‘camps’

Diplomatic sources close to the negotiations say that as it stands now, governments are broadly divided into three groups:

• Those who favor the extension of the waiver to include therapeutics and diagnostics include South Africa, India, Kenya, Indonesia, Zimbabwe, Pakistan, Egypt, Bolivia, Argentina, Venezuela, and the African, Caribbean and Pacific Group of states.
• Countries questioning the need for an extension include Switzerland, Singapore, Japan, Canada, South Korea, the European Union, and the United Kingdom.
• A third group, consisting of Colombia, Costa Rica, Uruguay, Mexico, China and Chinese Taipei, is considering a compromise solution; a limited extension to include a specific list of therapeutic and diagnostic products. Today, over 1,800 COVID-19 therapeutics are currently in different stages of the R&D pipeline.

The joint Swiss–Mexican letter notes that 138 bilateral voluntary licensing agreements with 127 countries have resulted in the creation of 191 production sites for COVID-19 therapeutics worldwide. Based on this information, the communication states, “we do not face a situation where we have an IP-induced lack of access to or a lack of manufacturing capacity of COVID-19 therapeutics and diagnostics. As a consequence, no adjustments to the IP system seem to be required.”

 However, these arguments have so far failed to sway the proponents of a broad waiver as initially proposed by India and South Africa. “The European Union, Switzerland, and the United Kingdom are playing a cynical game of running down the clock in WTO negotiations on extending the [MC12 TRIPS agreement] to diagnostics and therapeutics,” said Thiru Balasubramaniam, Geneva representative of Knowledge Ecology International.

Balasubramaniam also noted that just this week, WHO’s Director-General, Tedros Adhanom Ghebreyesus, said that “one of the most important lessons of the pandemic is that manufacturing capacity for medicines, diagnostics, vaccines and other tools is concentrated in too few countries.” 

For Balasubramaniam, “WTO members expressing doubts about the barriers posed by intellectual property with respect to accessing COVID-19 therapeutics and diagnostics should pay heed to the advice of the World Health Organization, the leading authority on global health.”

The TRIPS Council will meet again, informally, on 22 November. “We do not have a lot of time,” the chairperson acknowledges. Further meetings are scheduled for 6 December, with the possibility of calling members for another meeting on December 15, four days before the deadline.

Additional reporting by Philippe Mottaz.

This article was first published by the Geneva Observer.

Image Credits: Raja Mataniari .