WTO Fails To Reach Deal On COVID IP Waiver Proposal, Again

By Andrew Karpan
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Law360 (March 11, 2021, 9:40 PM EST) -- On the one-year anniversary of its declaration of a global pandemic, the World Trade Organization stayed the course Thursday and failed, again, to reach an agreement on a proposal to temporarily waive any intellectual property rights for vaccines and treatments related to COVID-19.

The latest meeting of the WTO's Council for Trade-Related Aspects of Intellectual Property Rights ended the same way it did in December and, before that in October, according to a Geneva trade official. The governments of the United States, the European Union and the United Kingdom, among others, objected to a popular proposal to waive provisions of the TRIPS Agreement, a global treaty governing international property rights.

The proposal would waive for WTO members certain provisions of the TRIPS Agreement for treating, containing and preventing the coronavirus, but only until widespread vaccination and immunity are achieved.

However, the group was able to agree to meet again at least twice next month to discuss the matter further, in advance of its next scheduled meeting in June.

The proposal was co-sponsored by 57 countries in the trade group and on Thursday support split largely along the lines of the WTO's self-identified developed and developing countries. According to the trade official, the only developing country to oppose the waiver was Brazil.

During the meeting Thursday, representatives for South Africa had likened the issue to the HIV and AIDS pandemic, which has claimed at least 11 million lives on the African continent in part due to lack of access to treatment, something the country said was partially the fault of pharmaceutical company practices.

According to the trade official, South Africa's representative expressed doubt over the real intentions of the developed countries' opposition to the COVID-19 deal and their stances on transferring and disseminating technology. Along with India, South Africa has been leading the charge in the IP waiver push for much of the past year.

Representatives for the U.S. welcomed further engagement with the proposal's sponsors, according to the trade official, but wished the countries would bear in mind the importance of incentives for innovation.

In the U.S. and the developed countries, advocacy groups responded to the latest inaction with outrage. 

"It is disappointing that despite the majority of the world being on the side of the TRIPS Waiver, it has been blocked by a few countries once again," Katie Gallogly-Swan, a policy coordinator for a joint project between the Global Development Policy Center and the United Nations Conference on Trade and Development, said in a statement to Law360. "It is time to accept that we are not on track to vaccinate the world."

She estimated that "allowing such vaccine inequality to persist" would cost the global economy over $9 trillion.

Yuanqiong Hu, a legal and policy adviser to Doctors Without Borders' Campaign for Access to Essential Medicines, told Law360 that "what we need today are concrete actions, not more discussions and consultations. Some countries that oppose the monopoly waiver continue to propose voluntary measures, but these governments know that this will not be sufficient and will not result in the change we need to see."

Among business groups, strident opposition to the waiver has only grown. The U.S. Chamber of Commerce last week warned the WTO's new director-general not to "distract" herself with the proposal.

On Tuesday, Stephen Ezell, a vice president at the think tank Information Technology and Innovation Foundation, said in a statement that "it would be disastrous if defective vaccines or therapeutics were produced at facilities not properly equipped to produce such complex treatments."

But in Congress, lawmakers have been urging President Joe Biden to reverse the country's opposition to the proposal, which was set by former President Donald Trump. On Wednesday, Sen. Bernie Sanders, I-Vt., was the latest to back the TRIPS waiver.

"It is unconscionable that amid a global health crisis, huge multibillion dollar pharmaceutical companies continue to prioritize profits by protecting their monopolies and driving up prices rather than prioritizing the lives of people everywhere, including the Global South," Sanders said in a statement on Twitter.

--Additional reporting by Kevin Stawicki and Adam Lidgett. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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