World Trade Organisation Twelfth Ministerial Conference Adopts IP Waiver for Covid-19 Vaccines
- 20/06/2022
- Articles
On 17 June 2022, the World Trade Organisation announced that its twelfth Ministerial Conference in Geneva gave rise to a series of agreements, dubbed the “Geneva Package”, in a range of areas, including fisheries subsidies, food safety and agriculture, WTO reform, and the WTO response to emergencies. As part of that last group of measures, the delegations adopted a controversial Ministerial Decision on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) which creates an intellectual property waiver for Covid-19 vaccines (the IP Waiver) (see, attachment).
The IP Waiver brings about a further relaxation of the existing rules that already allow WTO members to use the subject matter of a patent without the authorisation of the right holders (Article 31, TRIPS Agreement). Pursuant to the new more liberal rules, (i) the proposed user will no longer be required first to make efforts to obtain a licence from the right holder (Article 31(b), TRIPS Agreement); (ii) members will be allowed to drop the requirement that use of the patent under Article 31 should serve predominantly the domestic market (Article 31(f), TRIPS Agreement) (but re-exportations of vaccines following exports under the eased rules will be limited); and (iii) the adequate remuneration contemplated by Article 31(h), TRIPS Agreement will have to reflect the humanitarian context of the vaccination programme.
The IP Waiver did not seem to satisfy any of the stakeholders. Proponents of the IP Waiver decry (i) its limited five-year duration (which is subject to an extension); (ii) its narrow substantive scope (even though the IP Waiver requires a further decision within six months on a possible broadening of its application to Covid-19 diagnostics and therapeutics); and (iii) its failure to address the status of know-how which often plays an important role in the creation of pharmaceutical technologies.
At the other end of the spectrum, industry representatives expressed their horror at the further erosion of intellectual property rights (here and here) which they maintain constitute the bedrock of the enduring success of the industry. That success was epitomised by the speed with which safe and efficacious Covid-19 vaccines reached the patient and by the current worldwide glut of such vaccines.
