WTO Divided Over Suspending Protection Of COVID-19 IP

By Britain Eakin
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Law360 (November 20, 2020, 9:22 PM EST) -- A meeting of World Trade Organization members on Friday revealed deep divisions over a proposal from India, South Africa and other developing nations to suspend the trade body's intellectual property protections related to the coronavirus as part of the global response to the pandemic, a Geneva trade official said.

The proposal's co-sponsors, which now include Kenya, Eswatini, Mozambique and Pakistan, said it is needed to mitigate barriers to affordable COVID-19 vaccines and treatments. Wealthy countries, including the European Union and the United States, opposed the proposal, saying that solutions to the pandemic can be sought through the existing intellectual property system.

A group in the middle — including China, Ukraine, Chile, Ecuador, Mexico, Turkey and El Salvador — said they needed more clarification on the national legal and economic impacts, but welcomed the proposal, the trade official said.

However, the opposition from countries like the EU and the U.S. calls into question whether the proposal will pass when it goes before the WTO's general counsel next month.

The WTO failed to reach an agreement during a meeting in October, with some countries, including the U.K., saying there is no indication that intellectual property rights have hindered the availability of vaccines and therapeutics during the pandemic.

The proposal would waive for WTO members certain provisions of the TRIPS agreement, a global treaty governing international property rights, for treating, containing and preventing COVID-19, but only until widespread vaccination and immunity are achieved.

Since the coronavirus pandemic was first identified in December 2019 in Wuhan, China, 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 intellectual property barriers to developing therapeutics, vaccines and other tools necessary to combat the coronavirus. 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 has been a strong push from civil society as well, with more than 100 organizations urging the European Parliament in a letter Thursday to reconsider its opposition and back the proposal.

Among them was Doctors Without Borders, which urged the U.S. to back the proposal in a statement Thursday. The French medical charity said that preventing patent enforcement during the HIV and AIDS epidemic allowed the production of affordable, generic drugs.

Sidney Wong, executive co-director of the organization's access campaign said countries need all available tools to ensure that COVID-19 medical products are affordable and accessible to all who need them.

"Governments need to ask themselves which side of history they want to be on when the books on this pandemic are written," Wong said.

--Additional reporting by Kevin Stawicki. Editing by Breda Lund.

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