COVID-19 intellectual property exemption supporters split on what to cover

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Law360 (June 30, 2021, 6:50 p.m. EDT) – At a Wednesday meeting of World Trade Organization members, some of the early supporters of a grassroots effort to temporarily lift COVID-related intellectual property protections -19 questioned the Biden administration’s decision to limit its support to a deal that would only cover vaccines and not virus-related diagnostic treatments or personal protective equipment.

The disagreement arose during an informal meeting convened in Geneva by Ambassador Dagfinn Sørli of Norway, chairman of the WTO council overseeing the Trade-Related Aspects of Intellectual Property Rights Agreement, or TRIPS. It followed the first round of breakout discussions on the waiver, which focused on the scope of intellectual property rights that would be on the table once negotiations formally began.

At the heart of Wednesday’s debate was the scope of US Trade Representative Katherine Tai’s statement. decision in may to support the lifting of intellectual property protections related to the current COVID-19 pandemic, which has killed nearly 4 million people worldwide so far. Publicly, Tai’s office has limited its support to lifting protections only on patents and only related to vaccines.

The South African delegation had pointed out a report by the World Health Organization published in 2019 which consolidated, in a footnote, vaccines with drugs, medical devices, health products and technologies of the health, according to a trade official based in Geneva. Supporters of the TRIPS waiver, shortly after the United States announced its support, had issued a draft proposal that would forgo intellectual property protections for three years and cover all “health products and technologies” used “for the prevention, treatment or containment of COVID-19”.

The South African delegation also hinted at a list of “priority medical devices” the WHO released in December on Wednesday, the trade official said. These include ventilators, patient monitors, and medical and surgical masks, as well as the raw materials needed to manufacture the vaccines.

The trade delegation representing the United States responded by urging supporters of the waiver to focus on a deal that would be pragmatic, according to the trade official. Any deviation would require the unanimous agreement of the 159 members of the WTO.

The waiver is currently supported by more than 100 of them, but opposition from members of the European Union stay steep. Earlier in June, the EU presented a different proposition aimed at boosting the global distribution of COVID-19 vaccines, which would gradually eliminate vaccine export restrictions around the world, but not suspend intellectual property protections.

At Wednesday’s meeting, the EU group also expressed additional concerns that products developed during any waiver period would ultimately lose their eligibility for patent protection, if unlicensed use of those products became too much. prevalent during this period.

On Wednesday, the delegations of South Africa, as well as India, Pakistan and Bangladesh, among others, argued that the EU’s proposal should not be seen as an alternative to their waiver, according to the sales representative, because she would do nothing to change the According to them, intellectual property laws stand in the way of increasing access to the virus around the world.

The EU insisted that its proposal be accorded the same treatment by the WTO as the proposed TRIPS waiver, which had been the subject of much debate within the trade organization for much of the past year.

Outside the EU, supporters of the waiver are largely dismissive of the EU’s proposal. Dimitri Eynikel, policy adviser for Doctors Without Borders – one of the most ardent supporters of the TRIPS waiver in Europe and the United States – called it this week “nothing more than a facade on a system that is already in place. “.

But in Wednesday’s informal negotiations, the US had joined the EU – along with the UK, Switzerland, Mexico, Japan and Brazil, among others – in taking the stance that better access to vaccines and COVID-related treatments would still be possible. while largely keeping intellectual property laws as they are and which countries see as a basis for incentivizing investment. Technology transfers, argued this somewhat newly formed bloc, can still occur under the current licensing process.

–Additional reporting by Ryan Davis, Kevin Stawicki and Grace Dixon. Editing by Amy Rowe.

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