South Asian Insider
Suspend international IP, patent obligations on Covid-19 vaccines
Coordinated State action at the global level that temporarily suspends the application of relevant international law to Covid-19 vaccines and drugs will be an important step in fighting the pandemic.
Although strenuous efforts are on across the globe to develop vaccines and drugs to fight Covid-19, the issue of their equitable access remains a major challenge. A formidable barrier to ensuring timely access to vaccines and drugs could be patents or other intellectual property (IP) rights. Médecins Sans Frontières (MSF), in a 2017 report, documents how patents have hindered the introduction of affordable vaccines in developing countries. The rights of the inventor should be protected through IP laws. Arguably, such protection spurs innovation, overcoming the social costs imposed on the public through limited accessibility of the product. However, in a world living through the worst pandemic in a century, there is a strong case for the collective interests of humanity to trump the individual interests of the inventor.
India's recent proposal at the World Trade Organization (WTO), jointly with South Africa, asking for a temporary waiver of the application of certain provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement on Covid-19 vaccines and drugs must be seen in this light. If the waiver is granted, WTO member- countries will not be under obligation, for a temporary period, to either grant or enforce patents and other IP-related rights to Covid-19 drugs, vaccines,ventilators, masks and other related items. This will help them devise plans for vaccinating their populations without worrying about legal suits. While many developing countries have endorsed India's proposal, countries such as the United States have opposed the move.
Articles IX.3 and IX.4 of the WTO agreement empowers the ministerial conference to grant such a waiver. The ministerial conference should state the exceptional circumstances justifying the decision, the terms and conditions governing the working of the waiver, and the date on which the waiver shall end. Thus, the WTO can temporarily suspend the application of the IP-related provisions for a certain period to address the issue of accessibility of vaccines and drugs. There are several instances where WTO has adopted such waivers in the past.
Arguably, there is no need to suspend the application of the TRIPS agreement because countries can make use of its flexibilities such as the issuance of compulsory licences. But, working out of some of these flexibilities involves onerous procedural requirements.
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