The patent waiver proposed by India and South Africa and supported by various other countries has been revised proposing the temporary waiver to be for at least three years. This revision comes amid the uncertainty regarding the effectiveness of the vaccine for children and against new variants and was aimed to narrow down the scope of the waiver.  

Making it ‘narrow’

The proposal that was submitted earlier by the countries seeks to waive four categories of IPR which are copyright, industrial design, patents, and undisclosed information. Such waiver must be done until the majority of the population has been vaccinated against Covid-19. The revised proposal provides that this waiver must be assessed by the TRIPS council of WTO after three years.

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 “The revised text also adds a paragraph on the proposed duration. The international community is dealing with a novel pathogen, with many uncertainties. For instance, the investigation is still underway for effective therapeutics, and there are still many unknowns concerning vaccines that will have a bearing on the scale manufacturing and supply that will be needed to control the pandemic such as the duration of immunity conferred, effectiveness of vaccines against new variants, and the effect of vaccines on children. In addition, the duration has to be practical for manufacturing to be feasible and viable. These complexities suggest the need for a practical and flexible duration. Hence it is proposed that the General Council assesses the existence of the exceptional circumstances justifying the waiver after a minimum period to determine the date of termination.”

US Support

US government has supported India and South Africa's joint proposal at WTO over lifting the patent protection of Covid-19 drugs which can help the poor parts of the world get more doses. This move assumes that the inoculation drive will speed up especially in the poor countries amid pandemics.

The decision also got the support of France’s Emmanuel Macron and has been getting praise from countries and health advocates. Nevertheless, the decision also saw the pharmaceutical industry not supporting it with countries such as Germany stating that this won’t help to curb the outbreak anytime soon and will hurt innovation.

This is a global health crisis, and the extraordinary circumstances of the Covid-19 pandemic call for extraordinary measures,” the United States Trade Representative (USTR) said Thursday. USTR in its statement said that it strongly believes in the IP protection but for the service of ending this pandemic, USTR said it supports the waiver of those protections for Covid-19 vaccines and that it will “actively participate in text-based negotiations. “Those negotiations to affect the IP waiver would take time given the consensus-based nature of the institution and the complexity of the issues involved”, said USTR in the statement.

This proposal was floated jointly by India and South Africa last year seeking waiver of the IP rights for prevention, containment, or treatment of Covid-19 which was supported by more than 100 countries with EU, Japan, US, Australia continue opposing it. Such a proposal sought the removal of trade barriers for better accessibility of vaccines and medical products.  

Such a decision will be taken by the members of WTO having complex trade rules among nations. The decision needs to be taken unanimously, and if successful, the developers will need to share the know-how of the vaccine for manufacturing. Such a type of unanimous decision has never been taken before except the temporary waiver that was passed at WTO for importing cheap generic drugs for HIV, tuberculosis, and malaria.

"A waiver is the simple but the wrong answer to what is a complex problem,” said the International Federation of Pharmaceutical Manufacturers and Associations. “Waiving patents of COVID-19 vaccines will not increase production nor provide practical solutions needed to battle this global health crisis.”

Author: Saransh Chaturvedi an associate at Global Patent Filing,  in case of any queries please contact/write back us at support@globalpatentfiling.com.