US Support to TRIPS Waiver – Challenges Ahead

Synopsis – US is supporting the TRIPS waiver on Covid-19 Vaccines. However, it may take much more time and effort to take benefits out of it.

Introduction

• Firstly, the US is supporting a temporary waiver of the TRIPS agreement [patent protection rules] on Covid-19 vaccines proposed by India and South Africa.
• Further, Article IX of the WTO Agreement allows for waiving obligations in exceptional circumstances.

However, developed nations [home to the big pharmaceutical companies] oppose the TRIPS waiver.

Why developed countries were against the proposal to waive TRIPS?

According to some developed countries-

• Firstly, if IP (intellectual property) not properly protected, investment in the medical field, especially in the area of infectious diseases, would be reduced.
• Secondly, it will also add a risk factor for the growth of medical technology which will be hindered, and essential products may not be developed in future crises.

Hopefully, just support for the waiver is not sufficient. There are many more challenges in achieving the final goal of mass production of vaccines in every country.

TRIPS Waiver Challenges- 

• Firstly, Previous experience- TRIPS Agreement contains flexibilities. These include the freedom to use parallel imports and compulsory licenses that help countries get access to medicines. Yet such flexibilities are not always easy to use.
  • For example- Following the HIV/AIDS crisis in Africa in the 1990s, the WTO adopted a decision in 2003 to waive certain TRIPS obligations.
  • In 2003, a mechanism was developed that enables countries with no pharmaceutical manufacturing capability to use and benefit from compulsory licenses. However, it was subject to so many conditions that poor countries could not get the benefit of this waiver, such as
  • • The exporting country must ensure that the drugs so manufactured are exported to that nation only.
    • The medicines should be readily identifiable through different colours, or shapes.
    • Only the amount necessary to meet the requirements of the eligible importing country are manufactured
    • The importing country has to notify the WTO’s TRIPS Council.

• Secondly, Time-taking process- Given the WTO’s consensus-based decision-making process and the complexities of the issues involved, negotiations on the text of the waiver will take time.
• Thirdly, the limited scope of the waiver- The US only supports waiving IP protection on Covid-19 vaccines. While medicines and other therapeutics and technologies related to the treatment of COVID-19 are being ignored.
• Forth, Non-IP challenges- The lack of access to technological know-how related to manufacturing COVID-19 vaccines will not be solved by TRIPS waiver.
  • IP Waiver does not impose a legal requirement on pharmaceutical companies to transfer or share technology.

Recommendations- 

• Governments must negotiate with big-pharma firms for technology transfer by offering additional financial benefits and establishing a favorable policy environment.
• Countries should start working towards making suitable amendments to their domestic legal framework to operationalize and enforce the TRIPS waiver.
• Developed countries should consider waiving medicines and other therapeutics and technologies related to the treatment of COVID-19.

Source- The Hindu

Intellectual Property Rights(IPR) and Universal Vaccination – Explained, Pointwise