TRIPS
Council Welcomes MC12 TRIPS Waiver Decision, Discusses Possible Extension
·
Joint statement made by the three Director
Generals of the WHO, the World Intellectual Property Organization (WIPO) and
the WTO in June 2021 reaffirming their commitment to intensifying cooperation
in support of access to medical technologies worldwide to tackle the COVID-19
pandemic, including vaccines, therapeutics and diagnostics.
· Secretariat
will continue compiling and updating all COVID-related IP measures in its
document "COVID-19: Measures regarding Trade-Related Intellectual Property
Rights" to serve as the basis for members' exchanges.
· IP
and Innovation which had been requested by Australia, Canada, the European
Union, Hong Kong China, Japan, Singapore, Switzerland, Chinese Taipei, the
United Kingdom and the United States, the co-sponsors presented their new
submission with a focus on IP licensing opportunities (IP/C/W/691,
circulated on 23 June).
·
Decision adopted at MC12 to extend the
moratorium on non-violation and situation complaints (NVSCs) under the TRIPS
Agreement until the next Ministerial Conference (MC13).
At a meeting of the Council for Trade-Related Aspects of Intellectual
Property Rights (TRIPS) on 6 July, WTO members welcomed the adoption of the TRIPS
waiver decision on COVID-19 vaccines at the 12th Ministerial Conference (MC12) and
began discussions on a possible extension to cover the production and supply of
COVID-19 diagnostics and therapeutics. Trade officials also exchanged views on how
to promote IP licensing to benefit small businesses, inventors and other individuals.
At MC12,
trade ministers adopted the Ministerial Decision on the
TRIPS Agreement, which gives members greater scope to take direct action to diversify
production of COVID-19 vaccines and to override the exclusive effect of patents
through a targeted waiver over the next five years. It addresses specific problems
identified during the pandemic and aims to help diversify vaccine production capacity.
It also contains a commitment that no later than six months from the date of the
decision (17 June), members will decide on its possible extension to cover the production
and supply of COVID-19 diagnostics and therapeutics.
Many
members took the floor to welcome the successful outcome at MC12, saying it proved
that WTO members can put aside differences and work together to respond to the most
urgent health challenges.
A group
of developing members who support an extension of the waiver to cover COVID-19 diagnostics
and therapeutics circulated a proposal at the meeting including an indicative timeline
for the TRIPS Council's next steps in this regard.
These
members argued that the waiver on COVID-19 vaccines falls short of their expectation
and is not enough to help developing countries comprehensively address current and
future health challenges. Equitable access to therapeutics and diagnostics, as pointed
out by the World Health Organization (WHO), is critical in helping detect new cases
and new variants. They said this waiver extension needs to be discussed with a sense
of urgency given the fact that many least developed countries (LDCs) lack access
to life-saving drugs and testing therapeutics.
Many
developing countries supported the initiative. They highlighted the joint statement
made by the three Director Generals of the WHO, the World Intellectual Property
Organization (WIPO) and the WTO in June 2021 reaffirming their commitment to intensifying
cooperation in support of access to medical technologies worldwide to tackle the
COVID-19 pandemic, including vaccines, therapeutics and diagnostics. There was also
a shared view that the negotiation process for the waiver extension should be open,
inclusive and transparent.
Other
members cautioned that more time was needed to conduct domestic consultations on
a possible extension of the waiver to therapeutics and diagnostics. Some members
also flagged the importance of an evidence-based negotiation as there was no evidence
that intellectual property did indeed constitute a barrier to accessing COVID-19
vaccines. Some also reiterated the need for members to fully make use of all the
flexibilities that already exist in the TRIPS Agreement (including compulsory licensing)
before requesting new flexibilities.
The chair,
Ambassador Lansana Gberie (Sierra
Leone), asked members that were ready to engage to commence discussing this matter
in various configurations. He encouraged members to individually report on progress
to the General Council meeting on 25-26 July while some members may need more time
to deliberate on the matter, he noted. The chair will inform members how best to
structure discussions on this matter going forward, he added.
Members
also agreed to continue exchanges under the agenda item of IP and COVID-19 so that
the TRIPS Council can keep abreast of new IP measures in relation to COVID-19 and
share relevant experience. The Council also decided that the Secretariat will continue
compiling and updating all COVID-related IP measures in its document "COVID-19: Measures regarding
Trade-Related Intellectual Property Rights" to serve as the
basis for members' exchanges.
Members
noted that this exercise is also in line with the Ministerial Declaration on the
WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics which
provides for ongoing analysis of lessons learned and challenges experienced during
the COVID-19 pandemic within the relevant WTO bodies.
Under
an item on IP and Innovation which had been requested by Australia, Canada, the
European Union, Hong Kong China, Japan, Singapore, Switzerland, Chinese Taipei,
the United Kingdom and the United States, the co-sponsors presented their new submission
with a focus on IP licensing opportunities (IP/C/W/691,
circulated on 23 June).
The co-sponsors
highlighted several major ways owners of IP assets can secure a broader reach for
their products and services through licensing agreements, which enable IP owners
to allow the licensee to make or sell the invention during the licence period. This includes licensing of patents, copyright,
trademarks and know-how.
The proponents
shared experiences on how to apply different licensing models and build up a friendly
ecosystem to foster IP trading. To overcome the knowledge gap and complexity of
implementing IP licensing, these countries have developed various toolkits to provide
training, online guidelines, contract templates, legal services and dispute settlement
so that small businesses and individuals can effectively participate in IP partnerships.
Members
welcomed the discussion on IP innovation and IP licensing, with some sharing their
domestic practices. WIPO introduced its recent activities in support of IP licensing,
including the establishment of an IP and innovation ecosystems sector, the work
of the WIPO arbitration and mediation centre, and guidance
to help start-ups develop their IP strategy.
WTO members
welcomed the decision adopted
at MC12 to extend the moratorium on non-violation and situation complaints (NVSCs)
under the TRIPS Agreement until the next Ministerial Conference (MC13). The decision
tasked members to continue examining possible scope and modalities for NVSCs and
to make recommendations to MC13.
This
concerns the longstanding issue of whether members should have the right to bring
dispute cases to the WTO if they consider that another member's action or a specific
situation has deprived them of an expected benefit under the TRIPS Agreement, even
if no specific TRIPS obligation has been violated.
This
moratorium was originally set to last for five years (1995–99), but it has been
extended a number of times since then in the absence of agreement by members on
what the scope and modalities could look like if non-violation and situation complaints
were to apply to the TRIPS Agreement.
At the
meeting, several developing countries suggested continuing the examination of the
scope and modalities of such complaints, with the aim of making it applicable to
WTO dispute settlement. Some members backed the idea of seeking a permanent solution
on this matter while others were concerned that allowing NVSC dispute complaints
might jeopardize the flexibilities granted in the TRIPS Agreement.
Technical cooperation and capacity building
WIPO
briefed the meeting on the WHO-WIPO-WTO COVID-19 Technical Assistance Platform, which
offers a one-stop shop to help members and WTO accession candidates address their
capacity building needs to respond to the COVID-19 pandemic.
The chair
urged members to submit information on their activities in technical cooperation
and capacity building as well as incentives for technology transfer by 12 September
in preparation for the end-of-year annual review. Members are encouraged to use
the online submission system (e-TRIPS) to
make submissions.