WTO Negotiations Restart Over COVID-19 Products Patent Waiver Proposal

June 2, 2021

World Trade Organization (WTO) negotiations resumed Monday over a revised version of a controversial proposal to temporarily waive patents for COVID-19 products, including vaccines and therapeutics.

The revised proposal from South Africa and India seeks a preliminary three-year cap on patent waivers with the option for the WTO to extend them if needed. The previous proposal did not include any cap.

The waiving of intellectual property (IP) rights continues to come under fire from wealthy nations who stress that patent protections are crucial to developing treatments for future pandemics.

The Biden administration recently endorsed the initial South-Africa proposal to allow waivers but appeared to pull back from that position by signing onto a declaration by the G20 nations that called for voluntary rather than compulsory licensing.

The EU also supports the G20 declaration but has suggested that compulsory licensing is legal for governments during a crisis under existing international agreements, including the trade-related aspects of intellectual property rights (TRIPS) agreement and the 2001 Doho Declaration.

The EU plans to submit a proposal in early June clarifying when government-mandated patent waivers can be used during a crisis (DID, May 24).

One patent expert, Jorge Contreras, a law professor specializing in intellectual property protections at the University of Utah, believes that the current talks are unlikely to produce significant results.

“I think people are making a much bigger deal of the WTO proposal than they probably should,” Contreras told FDAnews. “It’s not a WTO proposal that’s gonna get a lot done … The U.S. is certainly not waiving any IP rights in the United States … It’s literally kind of a free pass from trade sanctions for countries that do decide to issue compulsory licenses,” he said.

Countries thinking about compulsory licensing are “moving forward and doing it whether or not this WTO waiver passes,” Contreras said, noting that Brazil is  taking the lead on the issue by adding forced transfer of intellectual property in a compulsory licensing bill currently moving through its legislature.

The WTO’s TRIPS council will take up the issue again during an informal meeting on Friday ahead of a formal meeting on June 8-9. — Jason Scott