COVID Vaccine IP Waiver Talks Heat Up At The WTO

By Alyssa Aquino
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Law360 (June 9, 2021, 6:02 PM EDT) -- World Trade Organization members agreed Wednesday to speed up talks over competing proposals to boost global COVID-19 vaccine access, including a hotly contested temporary waiver of intellectual property protections for vaccines.

The WTO council overseeing the Trade-Related Aspects of Intellectual Property Rights, or TRIPs, agreement said it would engage in a "text-based process" for a proposal from India and South Africa to suspend IP enforcement over COVID-19 vaccines and treatments, and also for a counterproposal from the European Union that would instead ease export restrictions for vaccines and issue compulsory licenses, according to a Geneva-based trade official.

With the discussions moving forward, the council's chair, Ambassador Dagfinn Sørli of Norway, told members to reach an agreement by the next WTO General Council meeting on July 21, the trade official said.

The WTO has been deadlocked for months over India and South Africa's requested waiver, which has garnered support from dozens of developing countries but has met opposition from wealthier nations, including the U.K. and EU members, homes of major vaccine manufacturers AstraZeneca PLC and BioNTech SE.

The U.S. has softened its opposition and now supports a waiver covering vaccine IP rights, instead of India and South Africa's broader waiver, which would cover health products and technologies related to the "prevention, technology or containment of COVID-19."

The EU was willing to negotiate on the duo's revised proposal, which limits the waiver to "at least three years," according to the trade official.

The regional bloc also suggested that, as part of the talks, the WTO agree to adopt the EU's proposed initiative to boost vaccine access, the trade official said. The plan calls on governments to ease export restrictions, expand vaccine production and issue limited licenses when vaccine patent holders refuse to voluntarily license their technology.

The TRIPS deal allows WTO members to issue compulsory licenses, which have been deployed to boost production of AIDS and HIV treatments, but experts say it's unclear what the licenses require pharmaceutical companies to disclose or how to comply. Practically, it "will be impossible" to enforce such licenses on trade secrets, Jorge L. Contreras, a law professor at the University of Utah and a former WilmerHale partner, previously told Law360.

Despite uncertainties with aspects of the EU's plan, it has won the support of the U.K., Switzerland and South Korea, which remain opposed to the waiver.

"The text strongly suggests that the international IP system is a barrier when we still have not seen evidence of it being the case," the U.K. said Wednesday. "Fundamentally, we remain to be convinced how an IP waiver, if agreed, would increase the supply of COVID-19 goods."

Voluntary licensing and technology transfer agreements, which fall short of the proposed IP waiver, have made a "real, positive impact" in global vaccine production, the U.K. said, noting that tech agreements have allowed the delivery of more than half a billion doses of AstraZeneca vaccines to 168 countries.

But London said it would "engage constructively" with the WTO process.

Although India and South Africa recently revised their proposal to win over more holdouts, the U.S. noted Wednesday that they made modest changes, the Geneva-based trade official said.

The U.S. stressed that members needed to find common ground and be responsive to each other's concerns, according to the official.

After the council session wrapped, several UN human rights experts called on the G7 to support the proposed waiver. Citing the World Health Organization, they said that less than 1% of vaccines were distributed to developing countries. As people in the Global South were being "left behind," an IP waiver would ensure equal access to shots, they said.

"States must ensure that legal protection for intellectual property and patents doesn't undermine the right of everyone to get access to a safe, timely and effective vaccine," they said.

The group included the top officials within the UN's working group on business and human rights and the special rapporteurs on extreme poverty and human rights and on the right to development.

--Additional reporting from Andrew Karpan, Grace Dixon and Britain Eakin. Editing by Adam LoBelia.

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