After nearly two years of negotiations, the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement decision announced in Geneva early on Friday morning bears little resemblance to the original proposal – made by India and South Africa and backed by over 100 governments – to suspend intellectual property (IP) on all Covid vaccines, tests and treatments in response to the pandemic. “The decision, as it stands, only concerns vaccines, while it would have been most useful for therapeutics and other health technologies,” according to IP think tank MedicinesLaw & Policy.
Access to life-saving generic antivirals and effective therapies is key in the fight against the pandemic raging. Here, India has a huge role to play with its core strength in manufacturing affordable generics, not only for its home market but also for developing countries. By omitting medicines, the WTO decision loses its edge, public health experts say.
Further, the deal does not suspend IP rights on vaccines, but only waives a procedural obligation in the TRIPS agreement, offering clarifications for use of compulsory licensing for exports. Utilizing these, Indian manufacturers can use a patent related to vaccine technology without the consent of a rights holder (compulsory license) for producing the vaccine for home use and exports, legal experts told TOI.
It only waives the requirement that production under the decision has to be predominantly for the domestic market. Most importantly, the “compromise deal” largely reiterates developing countries’ existing rights to override patents for public health, experts point out. Hence, in the absence of a meaningful suspension of monopoly rights in an unprecedented global health emergency, governments should consider using all available legal and policy options to overcome IP barriers and address ongoing access challenges for all Covid medical tools, public health experts say.
Disappointed with the outcome, MSF, an international humanitarian agency, said, “Governments should consider using all available legal and policy options, including suspending intellectual property on Covid-19 medical tools, issuing compulsory licenses on key medical technologies to overcome patent barriers, and adopting new laws and policies to ensure the disclosure of essential technical information needed to support generic production and supply. ”
Terming the WTO vaccine deal a technocratic fudge aimed at saving reputations, not lives, Max Lawson, co-chair of the People’s Vaccine Alliance and Head of Inequality Policy at Oxfam, said, “This is absolutely not the broad intellectual property waiver the world desperately needs to ensure access to vaccines and treatments for everyone, everywhere. This so-called compromise largely reiterates developing countries’ existing rights to override patents in certain circumstances. And it tries to restrict even that limited right to countries which do not already have the capacity to produce Covid-19 vaccines. We hope that developing countries will now take bolder action to exercise their rights to override vaccine intellectual property rules and, if necessary, circumvent them to save lives. ”
This agreement fails overall to offer an effective and meaningful solution to help increase people’s access to needed medical tools during the pandemic, as it does not adequately waiver intellectual property on all essential Covid medical tools, and it does not apply to all countries, an MSF statement adds.