COVID-19 IP Waiver Supporters Splinter On What To Cover

By Andrew Karpan
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Law360 (June 30, 2021, 6:50 PM EDT) -- In a Wednesday meeting of World Trade Organization members, some of the earlier supporters of a popular effort to temporarily waive intellectual property protections related to COVID-19 questioned the Biden administration's decision to limit its support to a deal that would only cover vaccines and not virus-related diagnostic treatments or personal protective equipment.

The disagreement arose during an informal meeting convened in Geneva by Ambassador Dagfinn Sørli of Norway, chair of the WTO council overseeing the Trade-Related Aspects of Intellectual Property Rights, or TRIPs, agreement. It followed the first round of small group discussions on the waiver, which focused on the scope of IP rights that would be on the table once negotiations formally begin. 

Central to Wednesday's debate was the extent of U.S. Trade Representative Katherine Tai's decision in May to support waiving intellectual property protections related to the ongoing COVID-19 pandemic, which has killed almost 4 million people around the world so far. Publicly, Tai's office has kept its support limited to waiving protections only on patents and only related to vaccines.

The delegation from South Africa had pointed to a World Health Organization report issued in 2019 that grouped, in a footnote, vaccines together with medicines, medical devices, health products and health technologies, according to a Geneva-based trade official. Supporters of the TRIPs waiver, shortly after the U.S. announced its support, had issued a draft proposal that would waive IP protections for three years and cover all "health products and technologies" used "for the prevention, treatment or containment of COVID-19."

On Wednesday, the South Africa delegation also alluded to a list of "priority medical devices" that the WHO issued in December, the trade official indicated. These include ventilators, patient monitors and medical and surgical masks, as well as the raw materials needed to make the vaccines.

The trade delegation representing the U.S. responded by urging the waiver's supporters to focus on a deal that would be pragmatic, according to the trade official. Any waiver would need the unanimous agreement of the WTO's 159 members.

The waiver is currently supported by over 100 of them, but opposition from members of the European Union remains stiff. Earlier in June, the EU put forward a different proposal aimed at boosting global distribution of COVID-19 vaccines, one which would phase out vaccine export restrictions around the world, but not suspend intellectual property protections.

In Wednesday's meeting, the EU group also raised additional fears that products developed during any waiver period would eventually lose their eligibility for patent protection, if unlicensed use of those products becomes too widespread during that time.

But the delegations from South Africa, as well as India, Pakistan and Bangladesh, among others, responded that the EU's proposal should not be pushed as an alternative to their waiver, according to the trade representative, because it would do nothing to change the IP laws they say stand in the way of increasing access to treatments meant to combat the virus' continued spread around the world.

The EU insisted that its proposal be afforded the same treatment by WTO as the proposed TRIPS waiver, which had been the subject of much debate at the trade organization for much of the past year.

Outside of the EU, supporters of the waiver are largely dismissive of the EU's proposal. Dimitri Eynikel, a policy advisor for Doctors Without Borders — among the more vocal advocates of the TRIPS waiver in Europe and the US — labeled it this week "nothing more than window dressing on a system that is already in place."

But in the informal negotiations on Wednesday, the U.S. had joined the EU — along with the United Kingdom, Switzerland, Mexico, Japan and Brazil, among others — in taking the position that greater access to COVID-related vaccines and therapeutics would still be possible while largely maintaining IP laws as they are and that the countries believe are a basis to incentivize investment. Technology transfers, this somewhat newly formed bloc argued, can still happen through the current licensing process.

--Additional reporting by Ryan Davis, Kevin Stawicki and Grace Dixon. Editing by Amy Rowe. 

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