COVID: TRIPS Council agrees to start text-based talks on patent waiver proposal

New Delhi: The TRIPS Council of the World Trade Organization (WTO) on Wednesday agreed with consensus to start text-based negotiations on a proposal submitted by India and South Africa seeking patent waivers to deal with the COVID-19 crisis, an official said.
The two-day meeting of the council concluded on Wednesday.
India has earlier emphasised on the importance of infusing certainty during such a crisis by agreeing to initiate text-based talks on the proposal.
“This agenda was discussed over two days, 48 members including the EU took the floor. At the end, (TRIPS Council) chair concluded that there is no objection from any member to start text-based negotiations. He will start consultation and a plenary meeting is called on 17th June to move forward,” the official said.
The chair has suggested reaching a conclusion by July 21, when the General Council is scheduled to meet.
In the meantime, India will engage with all members on line-by-line text negotiations.
“At the formal meeting of the council, WTO members agreed to engage in a text-based process to address the proposals put forward by delegations in order to improve the international response to COVID-19 and to achieve the common goal of providing equitable access to vaccines and other medical products for the global population as soon as possible,” another official from Geneva said.
In October 2020, India and South Africa had submitted the first proposal suggesting a waiver for all WTO members on the implementation of certain provisions of the TRIPS Agreement in relation to the prevention, containment or treatment of COVID-19.
In May this year, a revised proposal was submitted by 62 co-sponsors, including India, South Africa and Indonesia.
The agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPS came into effect in January 1995. It is a multilateral agreement on intellectual property (IP) rights such as copyright, industrial designs, patents and protection of undisclosed information or trade secrets.
TRIPS Council Chair Ambassador Dagfinn Sorli of Norway indicated in the meeting that he will consult with members as a matter of urgency on a process that can be arranged to start the talks with an aim to agree on a report for the next General Council meeting, which is scheduled for July 21-22.
He asked the member countries to be prepared for an intensive process with deliberations in various formats in the coming six weeks.
To start with, members will be convened for the first informal meeting on June 17.
According to the revised proposal of the 62 co-sponsors, the waiver should be in force for at least three years from the date of the decision on the matter.
The co-sponsors have stated that the duration has to be practical for manufacturing to be feasible and viable.
The revised text has also proposed waiver for health products and technologies as the prevention, treatment or containment of COVID-19 which involves a range of things and “intellectual property issues may arise with respect to the products and technologies, their materials or components, as well as their methods and means of manufacture.”
The official added that in the meeting of the TRIPS Council, India stated that the revised text reflects the balance between commercial interests of IP right holders and public health at large.
The Indian delegation stated that it is not against incentives for R&D and innovation, but at the same time one should acknowledge the importance of public health during a pandemic.
On the issue of the proposed three-year duration of the waiver, India stressed it considers the uncertainties surrounding the pandemic, with new variants outbreaks, while also highlighting the temporary nature of the waiver.
India has clarified that the proponents have no intention of continuing the waiver for an indefinite period and no intention of denying benefits to right holders. The country has suggested to commence discussions from mid-June and enter into line-by-line negotiations on the proposed texts if the idea is to conclude a concrete agreement by the end of July.
The WTO’s General Council would have to determine a date of termination of the waiver once the exceptional circumstances end.
Text-based discussions also had clear support of members who do not necessarily side with the content of the South Africa-India proposal but endorse initiating a process at the WTO, given the extraordinary circumstances of the COVID-19 pandemic.
These members include the US, Australia, Canada, New Zealand, Ukraine, Brazil, Norway, China and Chinese Taipei.
Further, the European Union, UK, Switzerland and Korea reiterated their opposition to waiving TRIPS provisions as a response to COVID-19.
According to the proponents of the waiver proposal, the objective is to avoid barriers to the timely access to affordable medical products, including vaccines and medicines, or to scaling-up of research, development, manufacturing, and supply of essential medical products.
The waiver would cover obligations in four sections of the TRIPS Agreement — Section 1 on copyright and related rights, Section 4 on industrial designs, Section 5 on patents and Section 7 on the protection of undisclosed information.
The proposal has been discussed 11 times at the TRIPS Council — both in formal and informal mode.

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