COVID IP Waiver Plan At WTO Being Revised Amid 'Optimism'

By Ryan Davis
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Law360 (April 30, 2021, 9:03 PM EDT) -- A proposal to waive intellectual property rights for COVID-19 vaccines and treatments left a World Trade Organization IP panel deadlocked again Friday, but proponents said they will revise the plan to find common ground, which the committee's chairman said was cause for "careful optimism."

The controversial call to temporarily limit IP rights amid the pandemic has been spearheaded by India and South Africa and opposed by many wealthy nations. On Friday, it left members of WTO's Council for Trade-Related Aspects of Intellectual Property Rights far apart, just as they were at their previous meeting in March, according to a Geneva trade official.

However, the co-sponsors of the proposal said at Friday's meeting that they will review the text in an effort to reconcile the positions of countries around the world. They said they would meet with WTO members who support and oppose the plan in an effort to find common ground.

The chairman of the TRIPS Council, Ambassador Dagfinn Sørli of Norway, said that given the planned revisions, there is now reason for some "careful optimism." Although there are significant differences among the members, there is a willingness on all sides to find a constructive and consensual approach, he said.

Sørli suggested that proponents meet in the second half of May to assess their progress so the new text could be presented at the committee's next meeting in early June. The co-sponsors did not elaborate on the details, scope or nature of the possible revisions, the Geneva trade official said.

The U.S. has to date opposed the proposed waiver, but President Joe Biden has been the focus of furious lobbying both for and against it. The White House said this week that the administration is evaluating the proposal and has not made a decision about it.

The Geneva trade official said that at this week's meeting, South Africa welcomed comments from the U.S. and other countries that they are open to further discussions about the proposal.

That may include getting a better understanding of the relationship between IP rights and the limits on COVID-19 vaccine production and delivery, and finding ways to facilitate transfer of manufacturing know-how to make more of the vaccine, the official said.

The proposed waiver has been backed by more than 100 mostly developing nations, but faces opposition in many other countries. The European Parliament voted 454-162 on Thursday against an amendment calling for the European Union to support the proposal.

In a report Friday about international intellectual property rights, the office of U.S. Trade Representative Katherine Tai said it is continuing to examine the WTO proposal.

"The United States is exploring every avenue to coordinate with the global community and is evaluating the efficacy of proposals in multilateral fora, including the WTO, by their true potential to save lives, end this pandemic, and respond to the next one," the report said.

White House press secretary Jen Psaki said Tuesday that the administration is considering whether the proposal will increase access to vaccines.

"There are a lot of different ways to do that. Right now, that's one of the ways, but we have to assess what makes the most sense," she said.

While not addressing the proposed waiver directly, Tai said at a WTO conference in mid-April that "the highest standards of courage and sacrifice are demanded of us in times of crisis. The same needs to be demanded of industry."

Over the past several days, Tai has met with the CEOs of Moderna, Pfizer and other vaccine makers about the proposed waiver, as well as with Bill Gates, who opposes it, according to statements by the USTR.

Indian Prime Minister Narendra Modi, whose nation has been hit hard by COVID-19 in recent weeks, discussed the proposed waiver with Biden when they spoke by phone on April 26 and told him that adopting it would "ensure quick and affordable access to vaccines and medicines for developing countries," according to a statement from Modi's office.

The Biden administration is being pushed to endorse the waiver by medical advocacy groups like Doctors Without Borders, dozens of progressive members of Congress and a group of ex-world leaders including former U.K. Prime Minister Gordon Brown and former Soviet leader Mikhail Gorbachev. They argued that relaxing IP rights will reduce the barriers to access to the vaccines.

Among those urging the the White House to oppose the plan are the pharmaceutical industry, the U.S. Chamber of Commerce and a number of lawmakers. They maintain that waiving IP rights will not help make COVID vaccines more widely available and will undermine the incentive to develop medical treatments in the future.

--Editing by Rich Mills.

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