Governments are deeply divided over an effort to endorse a temporary waiver on some of the World Trade Organization's intellectual property rights provisions around COVID-19 vaccines and some medical devices.
China, France, Russia, Spain, the United States, the World Health Organization, and Pope Francis all support an IP waiver on vaccines.
The pharmaceutical industry and some high-income nations argue there are existing avenues to override intellectual property during emergencies or that intellectual property relief will not accelerate vaccine manufacturing because materials are scarce.
WTO Director-General Ngozi Okonjo-Iweala says there is a “pathway” for a global agreement to provide more COVID-19 vaccines to developing countries, even though governments are deeply divided over an effort to endorse a temporary waiver on some of the organization’s intellectual property (IP) rights provisions.
South Africa and India, backed by many developing country members, want a temporary waiver of IP rights on COVID-19 vaccines as well as diagnostics, therapeutics, and medical devices. They argue that scrapping these protections will enable poorer countries to manufacture more vaccines, treatments, diagnostics, and other vital medical tools needed to battle the coronavirus—and address the extreme inequity in access to vaccines. The idea for a waiver also benefits from support from the United States, as well as some other advanced economies, though they are still discussing differences on details.
WTO members agreed on June 9 to start formal talks on a plan to boost production of the vaccines and treatments through patent waivers or compulsory licensing deals. Three days later, Okonjo-Iweala acknowledged that while clinching a deal would be tough, “there is a pathway [and] I would very much like to see some form of progress by July.”
An initial report on the status of the text-based discussions was expected around July 21-22.
The pharmaceutical industry and many high-income nations fiercely oppose the proposal, saying patents are not the main obstacle to scaling up production. One of the chief concerns about IP waivers is that they could give a shortcut to competitors seeking to acquire expensive technology. Companies also argue that IP relief will not accelerate vaccine manufacturing because materials are scarce, and it can take years to build up capacity from scratch.
Governments opposing the waiver say WTO rules already allow countries to apply for ‘compulsory licensing’ to override IP during emergencies (compulsory licenses are authorizations given to a third party to manufacture, use, or sell a particular product or use a particular process that has been patented, without the need of the permission of the patent owner). Right now, for example, Bolivia is applying to the WTO to use this process so it can manufacture Johnson & Johnson’s COVID-19 vaccine. However, compulsory licenses are extremely complex and obtaining them takes a great deal of time, according to a group of researchers in the United Kingdom who study patent law (see here or here).
The Swiss government wants drug companies to secure voluntary licensing deals, as AstraZeneca did with the Serum Institute of India to produce its COVID-19 jabs. Switzerland, along with Britain and South Korea, supports a separate European Commission proposal, which calls for limits on export restrictions, expanded production, and compulsory licensing of the patents in some circumstances—particularly by clarifying that the requirement to negotiate with the right holder of the vaccine patent does not apply in urgent situations such as pandemics.
Some European lawmakers, however, say the Commission’s alternative proposal does not go far enough. The European Parliament passed an amendment in early June calling for a temporary waiver of some provisions of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights—the global IP rulebook—in relation to COVID-19 vaccines, treatments, and equipment.
China, France, Russia, and Spain also all support an IP waiver on vaccines. So does the World Health Organization, Pope Francis, and, crucially, the Biden administration. However, the White House is calling for the suspension of vaccine patents only, while South Africa and India (and the European Parliament) want it to cover other COVID-19-related medical products such as therapeutics and personal protective equipment.
“The administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines,” U.S. Trade Representative Katherine Tai said in early May. “We will actively participate in text-based negotiations at the WTO needed to make that happen.”
This article was originally published in IISD’s Trade and Sustainability Review, Volume 1, Issue 3.