EU Remains A Holdout On COVID-Related IP Waiver At WTO

By Andrew Karpan
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Law360 (July 6, 2021, 8:09 PM EDT) -- As World Trade Organization members met again Tuesday to discuss a proposal to temporarily waive intellectual property protections related to COVID-19, the European Union clashed with the waiver's supporters over when and how such a waiver would ever end.

The informal gathering in Geneva was the latest convened by Ambassador Dagfinn Sørli of Norway, chair of the WTO council overseeing the agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS. Much of Tuesday's meeting was dominated by debate between representatives from South Africa and the EU, which had remained the largest holdout in negotiations that have been ongoing since last October.

Little progress was made, according to a ​​Geneva-based trade official.

Instead, the delegates fought over how long the proposed waiver would last. The waiver's main supporters — which include South Africa, India and over 100 other members of the trade organization — want a deal that would lift IP protections for at least three years. On Tuesday, the delegation from South Africa made clear that such a deal would not terminate automatically either, but only when the ongoing pandemic ends.

The EU did not share South Africa's optimism that a deal was anywhere near close to coming together, according to the official. Such a deal would need the support of all 159 members of the WTO. The EU has spent the past month attempting to direct attention to a different proposal, one that would phase out vaccine export restrictions around the world, but not suspend intellectual property protections.

On Tuesday, the EU called its plan the only one that could be passed quickly enough to have any impact on the response to the pandemic around the world. Their plan, the delegates stressed, was more pragmatic, echoing comments made by representatives of the United States in meetings last week.

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

Representatives for the U.S. on Tuesday responded that they were also concerned about the length of the proposed waiver, pointing out that a founding article of the Marrakesh Agreement, which had established the WTO, demanded that all waivers agreed to by the body come with definitive end dates.

Publicly, the U.S. has come out in support of the waiver but has, so far, extended that support only so far as to waiving protections on patents and only those patents directly related to vaccines.

Sørli, the meeting's chair, also brought up Tuesday the issue of trade secrets. The waiver's supporters indicated they planned on insisting that protections covering regulatory data be waived as well.

Formally, the panel managed to reach an agreement that talks would continue on the subject.

Another informal meeting is scheduled to take place Friday. The next official meeting on the issue is scheduled for July 20.

--Additional reporting by Kevin Stawicki, Grace Dixon and Britain Eakin. Editing by Robert Rudinger.

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