WTO Holds Off On Waiving IP For COVID-19 Vaccines

By Kevin Stawicki
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Law360 (October 19, 2020, 9:10 PM EDT) -- The World Trade Organization has failed to reach an agreement that would have temporarily waived intellectual property rights for vaccines and treatments related to COVID-19 as the pandemic continues worldwide.

Member states of the WTO's Council for Trade-Related Aspects of Intellectual Property Rights on Friday declined to take an unprecedented step to waive provisions of the TRIPS Agreement, a global treaty governing international property rights, according to Amnesty International and other civil society organizations familiar with the talks.

"The failure of states to agree on a waiver of certain key international trade rules risks hampering global efforts to tackle COVID-19," the U.K.-based non-governmental organization said, calling the move a "missed opportunity to put people before patents."

Since the coronavirus pandemic was first identified in Wuhan, China, in December 2019, there has been a global push for wider access to intellectual property related to vaccine development. India and South Africa led the charge in that movement, asking the WTO on Oct. 2 to give countries the opportunity to not grant or enforce patents for COVID-19 drugs and vaccines.

The two countries urged the WTO to remove the main barrier to developing therapeutics, vaccines and other tools necessary to combat the coronavirus — intellectual property. They laid out the case for a waiver from provisions of the TRIPS Agreement.

While countries have been ramping up production of medical supplies and working toward a vaccine, intellectual property rights are holding back the development of more affordable medical products, India and South Africa said, adding that some of the requirements of the TRIPS Agreement create an unnecessarily burdensome process to import and export medical products.

"There is an urgent call for global solidarity, and the unhindered global sharing of technology and know-how [is important so] that rapid responses for the handling of COVID-19 can be put in place on a real time basis," the countries said in their proposal, which was co-sponsored by Kenya and Eswatini.

A group of civil society organizations, including Knowledge Ecology International, Oxfam and the Health Global Access Project, also backed the proposal, saying in a letter that the international community should come together to accelerate vaccine and therapeutic production.

"Seven months into the pandemic, there is no meaningful global policy solution to ensure access," the letter said. "Instead, there is an inequality of access to critical technologies that are needed to address the pandemic."

The organizations added that the pharmaceutical industry has been operating with a "business as usual" approach even though less-developed nations are struggling to provide medical products and testing.

"It's time for governments to take collective responsibility and put people's lives before corporate monopolies," the organizations said.

But when the proposal went up for debate at the WTO on Friday, some countries lined up in opposition.

The U.K. said in a statement that there is no indication that intellectual property rights have hindered the availability of vaccines and therapeutics during the pandemic.

"A waiver to the IP rights set out in the TRIPS Agreement is an extreme measure to address an unproven problem," representatives for the U.K. said in a statement. "Pursuing the proposed path would be counterproductive and would undermine a regime that offers solutions to the issues at hand."

However, some action toward making intellectual property more accessible has already been taken by the private sector. Moderna Therapeutics said on Oct. 8 that it won't enforce seven patents related to its coronavirus vaccine during the pandemic. The Massachusetts-based biotechnology company said it had a "special obligation" to make its intellectual property for mRNA vaccines and therapeutics available to other companies attempting to create a vaccine during the pandemic.

Other companies have recently been inching toward expanding access to vaccines developed during the pandemic. AstraZeneca announced in August that it would allow all European Union member states to access its vaccine "in an equitable manner at no profit."

The company has said it treats vaccine development "as a response to a global public health emergency, not a commercial opportunity."

--Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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