Latest WTO Waiver Compromise Text Targets COVID Vaccine Patents, Draws Criticism from Both Sides

“Governments and international organizations should avoid political distractions and more quickly achieve comprehensive global vaccination against COVID-19, by focusing on real, practical ongoing issues with last-mile distribution.” – Patrick Kilbride, GIPC overnight indicated that the European Union, United States, India and South Africa have reached a compromise on language for a waiver of intellectual property rights related to COVID-19 vaccine technology under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The compromise is not final and still must get official approval from all 164 World Trade Organization (WTO) member countries.

The latest text is limited to “patented subject matter required for the production and supply of COVID-19 vaccines” only; the previous proposal was much broader. “Patented subject matter” is defined as including “ingredients and processes necessary for the manufacture of the COVID-19 vaccines.”

However, the text does contemplate extending the waiver to “the production and distribution of COVID-19 diagnostics and therapeutics” within six months of adoption.

The text also limits “eligible members” to “any developing country Member that exported less than 10 percent of world exports of COVID-19 vaccine doses in 2021.”

In May of last year, U.S. Trade Representative Katherine Tai said that the United States would back the waiver proposal, which was brought by India and South Africa in 2020. Tai said at the time: “We are for the waiver at the WTO, we are for what the proponents of the waiver are trying to accomplish, which is better access, more manufacturing capability, more shots in arms.”

Since then, discussions have been ongoing, despite opposition from European leaders across the political spectrum, including former German chancellor Angela Merkel and European Commissioner for Trade Valdis Dombrovskis. Both leaders noted IP protection as being integral to any solution.

In June of 2021, the European Commission submitted to the WTO an alternative proposal for improving access to COVID-19 vaccines and treatments in countries suffering from vaccine shortages. While the EU alternative contemplated the possible use of compulsory licensing, it addressed supply chain issues that many argue are the crux of the problem.

The U.S. decision to engage on waiver discussions, and this latest compromise text, has drawn criticism from many groups. Senior Vice President of the U.S. Chamber of Commerce Global Innovation Policy Center, Patrick Kilbride, said in a statement issued last night that the proposal remains “fundamentally misguided and should be rejected.” He continued:

It ignores that the overwhelming problem is not vaccine production, it is last-mile delivery, and it will erode the ability of innovative companies to develop the cure for the next pandemic or global health threat…. Vaccine production is estimated to reach over 20 billion doses this year, enough for everyone. As of March, over 65% of [the] global population has received at least one vaccination, and this number is growing every day. Some patients remain hard to reach. Governments and international organizations should avoid political distractions and more quickly achieve comprehensive global vaccination against COVID-19, by focusing on real, practical ongoing issues with last-mile distribution.

The GIPC addresses these last-mile issues in its latest blog post, calling on the Biden Administration to focus “on real, practical matters” as the leader on the global response to the pandemic and highlights efforts such as continental partnerships between leading vaccine makers and Aspen SA Operations (Pty) Ltd, based in South Africa, as a way forward.

A U.S. Trade Representative spokesperson, Adam Hodge, said in a statement that the “difficult and protracted process has resulted in a compromise outcome that offers the most promising path toward achieving a concrete and meaningful outcome.”

Many proponents of the waiver, meanwhile, believe the compromise text does not go far enough. Shailly Gupta, communications adviser for the Access Campaign at Médecins Sans Frontières (MSF)/ Doctors Without Borders, said in a tweet “#Tripswaiver only for vaccines! Not good at all.”

And James Love of Knowledge Ecology International said: “It’s amazing how minimal the legal benefits are, and how the EU and the US were able to cram in all sorts of TRIPS plus rules on the use of compulsory licenses, and to normalize even more protectionism regarding exports to high income countries.”

Others have accused the United States of “participating in high-level, closed-door negotiations for an intellectual property waiver that have effectively determined that any final agreement, if approved, will only apply to vaccines,” which “flies in the face of demands from global civil society organizations, which have called for an intellectual property waiver on all Covid-19 products, from vaccines to antivirals and tests.”

How such a waiver will play out in practice is uncertain as the pandemic wanes. IPWatchdog Founder and CEO Gene Quinn noted in October of last year that, this far into the pandemic, there is likely to be little practical impact from any waiver of IP rights.

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Join the Discussion

3 comments so far.

  • [Avatar for Anon]
    March 17, 2022 09:50 am

    Greg mentions his surprise – when all along I have been pointing out the thing that he expresses as surprise.

    It is NOT a surprise how unwilling Greg has been in actually engaging on the thoughts of others.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    March 16, 2022 07:22 pm

    Interesting. The compromise text appears to back off of trade secret waivers entirely, and confines itself only to waiver of the patent protections specified under TRIPS Art. 28. Given that the Europeans were the major obstacle to previous iterations of this proposal, one must infer from their approval of this iteration that they have–at all times–been more concerned about a trade secret waiver than a patent waiver. I am surprised at that.

  • [Avatar for Anon]
    March 16, 2022 10:02 am

    ALL of this amounts to empty virtue signaling.