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.
IP and innovation: IP licensing opportunities
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.
Non-violation and situation complaints
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.
More information on the TRIPS non-violation issue is available here.
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.