Monday, June 20, 2022

WTO Ministerial Decision on the TRIPS Agreement

In case you haven't seen it yet, at the WTO's 12th Ministerial Conference last week, the members agreed to a limited COVID vaccine waiver.  Here is a link to the decision.  Although it is titled "Draft  Ministerial Decision on the TRIPS Agreement," it is, apparently, the final, approved version.  Key part is paragraph 1, which states that "Notwithstanding the provision of patent rights under its domestic legislation, an eligible Member . . . may limit the rights provided for under Article 28.1 of the TRIPS Agreement . . . by authorizing the use of the subject matter of a patent .  .  .  required for the production and supply of COVID-19 vaccines without the consent of the right holder to the extent necessary to address the COVID-19 pandemic, in accordance with the provisions of Article 31 of the Agreement, as clarified and waived in paragraphs 2 to 6 below."  

Article 31, as readers are probably aware, conditions the use of compulsory licenses.  The decision clarifies, or permits some limits on compliance with, articles 31(b) (relating to efforts to obtain authorization from the right holder), 31(f) (relating to licensing for the supply of the domestic market), and 31(h) (relating to adequate remuneration).

According to paragraph 6 of the decision, the waiver will apply for five years from the date of the decision.  Members are also tasked, under paragraph 8, with deciding on the waiver's "extension to cover the production and supply of COvID-19 diagnostics and therapeutics." 

I often find myself in respectful disagreement with some of the opinions stated on IPWatchdog, but I have to concede that Eileen McDermott has a point when she writes that "The final text has made almost no one  happy"--neither those advocating for a broad waiver, nor the pharmaceutical companies.

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