After Months of Deadlock, WTO’s TRIPS Council Will Finally Discuss Intellectual Property Waiver Compromise Intellectual Property 03/05/2022 • Kerry Cullinan Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to print (Opens in new window) WTO Director-General Ngozi Okonjo-Iweala In a significant breakthrough, the World Trade Organization’s (WTO) TRIPS Council on Friday will finally discuss a compromise proposal on a waiver of intellectual property (IP) rights on COVID-19 vaccines – almost 18 months after it was first proposed by India and South Africa. Members attending an informal meeting of the TRIPS Council on Tuesday were told that the text of an “outcome document” from the “quad” of the European Union, US, India and South Africa would be circulated to them “within hours” from WTO Director-General Ngozi Okonjo-Iweala’s office. The outcome document, which was later posted on the WTO website, is very similar to that which was leaked in mid-March – but it has been termed an “outcome document” rather than an agreement as there are still a couple of points of disagreement. Disagreement over who should be eligible The main point of disagreement relates to which countries should be able to benefit from the waiver (footnote 1). All developing country members that have not yet achieved a significant export capacity – namely 10% of the world’s COVID-19 vaccine market – are supposed to benefit from the flexibilities. Apparently, China has been unhappy about being excluded while a country like India with large generic manufacturing capacity, may be included. But the new TRIPS Council chairperson, Sierra Leone’s Ambassador Lansana Gberie, told Tuesday’s meeting that the superpower “seemed favourably disposed” towards the compromise – also contained in footnote 1 – that states “all developing country members with capacity are encouraged to opt out from these flexibilities”, according to a WTO official. While the waiver only applies to vaccines, WTO members will have six months to decide whether to extend it to cover the production and distribution of COVID-19 diagnostics and therapeutics. According to the draft document, eligible WTO members will be able to limit TRIPS article Section 28, which deals with exclusive patents, by authorizing the production and supply of COVID-19 vaccines without the patent holder’s consent, and with minimal transaction costs. Single authorisation for multiple patents Another deviation from draft agreement that was leaked in mid-March is related to whether countries will have to list all the patents that they will be waiving – widely criticised for imposing onerous requirements on countries. This appears set to go, according to footnote 3. Eligible countries may issue a single authorisation to use multiple patents and can export the vaccines they produce under this authorisation to other eligible members, particularly countries in greatest need, and to supply regional or international initiatives such as COVAX (a waiver of TRIPS Art. 31(f).) Eligible members will also be able to use any of their legal instruments to impose a waiver on vaccines, and the protection of clinical trial data under TRIPS will not be an obstacle to implementing this proposal. Payment for any vaccines produced under TRIPS waiver conditions for export is to take account of the humanitarian and not-for-profit purpose of the vaccine programme, to support manufacturers to produce and supply vaccines at affordable prices. The duration of the flexibilities would be either three or five years, and eligible members would be exempted from legal challenges under the WTO dispute settlement mechanism. The earlier agreement was widely condemned by health activist groups, who objected the waiver being confined to vaccines and excluding some of the world’s major COVID-19 vaccine producers. In addition, a diplomatic source told Health Policy Watch that he did not know the value of the waiver given that there was an apparent surplus of COVID-19 vaccines. The results of the formal discussion on Friday will be reported to the General Council, which is scheduled to meet on 9 and 10 May. Image Credits: Jess Hurd/ Global Justice Now, Africa Centre for International Trade&Development. Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to print (Opens in new window) Combat the infodemic in health information and support health policy reporting from the global South. Our growing network of journalists in Africa, Asia, Geneva and New York connect the dots between regional realities and the big global debates, with evidence-based, open access news and analysis. To make a personal or organisational contribution click here on PayPal.