The proposal to reach an agreement on a TRIPS waiver is a bit of a misnomer since it largely affirms and adds new requirements to TRIPS rather than waive its provisions. The proposal fails to accept the requests of researchers and access to knowledge organizations that the waiver extend to all intellectual property for vaccines, treatments and devices needed to combat COVID.
It does not address all intellectual property – it is confined to patents and protected data. This is despite it being necessary to use copyrighted and trade secret information to produce vaccines. And it does not apply beyond vaccines to other medicines or devices like ventilators required for treatment. Indeed, it does not even waive TRIPS. It requires use of Article 31 of TRIPS, which regulates compulsory licenses. It makes two small changes in the TRIPS rules. It seems to allow decisions that go beyond a case-by-case determination required by TRIPS Article 31(a) – instead allowing uses of decrees and executive orders that cover multiple patents. But in doing so, it adds a requirement not in TRIPS – that each patent be identified. It also waives Article 31(f), which normally requires the majority of the licensed products to remain in the licensing countries. But other than these small changes, TRIPS is left in place.
The good news is that TRIPS was never a huge barrier to using compulsory licenses to authorize uses of patents for production of generic medicines, vaccines or devices. Countries could have used the tool before, and they can use it now. Countries can also use the greater flexibility they have to address emergencies through use of TRIPS Article 73. Similar authority exists under the Berne Convention on copyrights, recognizing the ‘right of the Government of each country of the Union to permit … the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right.’
