COVID-19 Patent

Breaking: 12th WTO Ministerial Conference concludes with a Draft Decision on TRIPS (waiver?)


After 2 long years and the whole hubbub that the 12th Ministerial Conference was, (see here here and here) WTO has finally come up with the Draft Ministerial Decision On The TRIPS Agreement. The text is bound to have the world split on what to make of it. While multiple detailed assessments of this Draft Decision are due in course, I’ll quickly highlight a few key pointers which stand out (for better or worse) 

  1. Footnote 1: Defines ‘eligible Members’ to mean all the developing countries. However, it comes with a soft qualifier which states that Members with existing capacity to manufacture COVID-19 vaccines are “encouraged” to not resort to the mechanism discussed under the Draft Decision. Though the language of the qualifier is not binding, its mention in the text does imply some sort of pressure on these Members like India. 
  2. Inclusion of judicial orders in the list of instruments through which this mechanism could be applied by a Member. This is an up from the existing mechanism in India wherein the role of courts with regard to demanding the use of such patent policy levers is still murky. 
  3. Export of vaccines to eligible members and thus a one up from 31 bis arrangement wherein exports could be made to LDCs. 
  4. Participation of international and regional joint initiatives like COVAX in disseminating the vaccines to eligible members. 
  5. Unlike the original waiver proposal, the Draft Decision states that determination of remuneration shall be based on humanitarian grounds and not for profit purpose of vaccine distribution program. 
  6. The Draft Decision agrees on the understanding that Article 39.3, which talks about undisclosed data, shall not impinge Members from enabling rapid approval of vaccines.
  7. The provisions of the Draft Decision to be applied for 5 years. 
  8.  The period of 5 years may be extended by the General Council subjected to exceptional circumstances of COVID-19.  
  9. Members to decide on extension of the Draft Decision to cover production and supply of COVID-19 diagnostics and therapeutics. 
  10.  The decision shall not apply to the interpretation of flexibilities, rights and obligations under TRIPS, which are outside its scope. 

As said, more detailed posts on this Decision shall follow, however, at the outset it is apparent that this Decision is a far cry from what was originally intended and thus poses a question if this arrangement is actually a victory of multilateralism or just a makeshift compromise to please the respective masses.  

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