Proposal for TRIPS waiver for Covid-19 related medicines and technologies secures strong support from LMICs

In a landmark move, India and South Africa on 2 October asked the World Trade Organization (WTO) to allow all countries to choose to neither grant nor enforce patents and other intellectual property (IP) related to COVID-19 drugs, vaccines, diagnostics and other technologies for the duration of the pandemic, until global herd immunity is achieved. 

In the global battle for putting people’s lives before patents and the profits of big pharmaceutical companies, South Africa, India, Kenya, and Eswatini have issued a clarion call for a waiver from certain provisions of the WTO’s TRIPS Agreement for combating the worsening COVID-19 pandemic, participants told the SUNS.

The proposal for a TRIPS waiver by India, South Africa, Kenya and Eswatini (formerly called Swaziland) secured strong support from developing countries, while the United States and the European Union among others rejected it, said participants, who asked not to be identified.

At a meeting of the WTO’s TRIPS Council on 16 October, South Africa, India, Kenya and Eswatini made a comprehensive case as to why provisions governing “certain obligations related to COVID-19 products and technologies” under Sections 1 (copyrights and related rights), 4 (industrial designs), 5 (patents), and 7 (protection of undisclosed information) of Part II of the TRIPS Agreement need to be waived off.

Statement by Sri Lanka at WTO Council of Trips
Ms Gothami Silva, Sri Lankan Ambassador/Permanent Representative to WTO Permanent Mission of Sri Lanka to the WTO provided a very clear detailed statement in unequivocal support of the proposals. She expressed thanks and immense appreciation to India, South Africa, Kenya and other newly joined co-sponsors for presenting their extremely relevant and timely proposal for a Waiver from certain provisions of TRIPS Agreement for Prevention, Containment and Treatment of Covid-19.

In a Tweet posted on 17 October, the director-general of the World Health Organization (WHO), Dr Tedros Adhanom Ghebreyesus, welcomed the proposal tabled by South Africa and India “to ease international and intellectual property agreement on COVID-19 vaccines, treatments & tests in order to make the tools available to all who need them at an affordable cost.”

“Ending the pandemic starts with collaboration,” he said, suggesting that the WHO had launched the “COVID-19 Technology Access Pool in May, inviting countries to share data, knowledge and intellectual property on vital, life-saving health products in the fight against the coronavirus.”

D. Ravi Kanth of Third World Network (TWN) provided a very detailed explanation of the waiver proposal on October 19.

A briefing document prepared by Médecins Sans Frontières (MSF) aims to provide further details related to this important development, including a Q&A; an overview of the impact of IP barriers on access to therapeutics, vaccines and diagnostics; three case studies examining IP barriers in the context of COVID-19; and examples of Article IX waivers that have been granted with respect to provisions under the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) Agreement in the past. 

The MSF document provides answers to the following questions: 
What has been proposed? 
What would it mean if the waiver was granted? 
Is it legal to request a waiver from obligations under the TRIPS Agreement? 
Does the waiver proposed apply only to developing countries? 
How is a final decision reached at WTO on a waiver? 
Has a consensus been reached by WTO members to grant waivers in the past? 
Is the waiver permanent? 
Why is the waiver important at this moment in the pandemic?
Some people say IP is not an issue for COVID-19 tools. If that is true, why is a waiver needed?
Why do countries need a waiver when they can already use TRIPS flexibilities for public health?

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