India, South Africa, others revise proposal at WTO to temporarily waive patents on anti-Covid-19 vaccines, drugs

The governments co-sponsoring the patent waiver proposal suggest that the exemptions should be granted for at least three years

India, South Africa and 60 other nations have revised the proposal for temporarily waiving Intellectual Property Rights (IPR) protection on the anti-Covid-19 vaccines and drugs and re-submitted it before the World Trade Organization (WTO) in order to address the concerns of the opponents.

The governments co-sponsoring the proposal for the patent waiver at the WTO now suggested that the exemptions should be granted for at least three years.

The original proposal had wanted the WTO members to waive four categories of Intellectual Property Rights – copyright, industrial designs, patents and undisclosed information – under the Agreement of Trade-Related Intellectual Property Rights (TRIPS Agreement) until the majority of the world population would receive effective vaccines and develop immunity to Covid-19. The revised proposal now suggested that the TRIPS Council of the WTO would assess the need for continuing the waiver after three years.

The revised proposal was submitted at the WTO in Geneva late on Friday, thus setting the stage for the commencement of the negotiation on the final text of the exemption to the patent protection to be granted on the anti-Covid-19 vaccines and drugs and other medical equipment required to contain the pandemic.

India, South Africa and other proponents of the waiver revised the original October 2, 2020 proposal for the patent exemption after the opponents argued that it was too broad in scope.

Read | Countries urge WTO to go for broader medical patent waivers than just Covid vaccines

In a communiqué to the TRIPS Council of the WTO, the governments co-sponsoring the proposal stated that they had revised it in order to “add specificity to the decision text following concern that the original decision text” had been “too broad”. “Hence the revised text addresses this concern by focusing the text on ‘health products and technologies’ as the prevention, treatment or containment of (the) Covid-19 involves a range of products and technologies and intellectual property issues may arise with respect to the products and technologies, their materials or components, as well as their methods and means of manufacture”. They also stressed that the proposed waiver was limited in scope to the Covid-19 prevention, treatment and containment.

It was after India, South Africa and other co-sponsors of the proposal agreed to revise it and narrow down the scope of the suggested waiver that the United States recently agreed to change its position on the issue and extend its support to it.

Commerce Minister Piyush Goyal and the US Trade Representative Katherine Tai had on May 15 discussed over phone the revision of the original proposal.

Tai had earlier this month received a letter from a group of 12 Republican Party’s members in the US Congress, asking her not to support the move at the WTO for the IPR waiver on the anti-Covid-19 vaccines, as the proposal was “extraordinarily broad and unnecessary”. The International Federation of Pharmaceutical Manufacturers and Association too stated that the proposed IPR waiver would not lead to faster research and development or access to anti-Covid-19 vaccines and drugs, but would undermine confidence in what had proven to be a well-functioning system.

The revised text has a new paragraph on the proposed duration of the waiver. “The international community is dealing with a novel pathogen, with many uncertainties. For instance, investigation is still underway for effective therapeutics, and there are still many unknowns with respect to vaccines which will have a bearing on the scale manufacturing and supply that will be needed to control the pandemic such as the duration of immunity conferred, effectiveness of vaccines against new variants, and the effect of vaccines on children,” the co-sponsors of the proposal noted in the latest communiqué to the TRIPS Council. “In addition,” they added, “the duration has to be practical for manufacturing to be feasible and viable. These complexities suggest the need for a practical and flexible duration”.

The proposed waiver will allow the governments of the WTO member nations to choose to neither grant nor enforce patents and other Intellectual Property Rights protection to all anti-Covid-19 drugs, vaccines, diagnostics and other technologies. The waiver, according to its proponents, will allow any company anywhere in the world to produce cheaper versions of the equipment required to prevent the spread of the SARS-CoV-2 virus as well as the anti-Covid-19 drugs and vaccines, without the fear of being subjected to legal proceedings for violation of IPR protection. It will thus make it possible to scale up global production of the drugs and vaccines, instead of allowing only a small number of patent holding companies to manufacture and thus control global supply of the medical tools required to contain the pandemic.