TRIPS Waiver

TRIPS Waiver

Statement by President Joe Biden on the Omicron COVID-⁠19 Variant
November 26, 2021 • Statements and Releases
…In addition, I call on the nations gathering next week for the World Trade Organization ministerial meeting to meet the U.S. challenge to waive intellectual property protections for COVID vaccines, so these vaccines can be manufactured globally.  I endorsed this position in April; this news today reiterates the importance of moving on this quickly.



WTO – General Council decides to postpone MC12 indefinitely
26 November 2021
The General Council agreed late Friday (26 November) to postpone the imminent Ministerial Conference after an outbreak of a particularly transmissible strain of the COVID-19 virus led several governments to impose travel restrictions that would have prevented many ministers from reaching Geneva.

The 12th Ministerial Conference (MC12) was due to start on 30 November and run until 3 December, but the announcement of travel restrictions and quarantine requirements in Switzerland and many other European countries led General Council Chair Amb. Dacio Castillo (Honduras) to call an emergency meeting of all WTO members to inform them of the situation.

“Given these unfortunate developments and the uncertainty that they cause, we see no alternative but to propose to postpone the Ministerial Conference and reconvene it as soon as possible when conditions allow,” Amb. Castillo told the General Council. “I trust that you will fully appreciate the seriousness of the situation.”

Director-General Ngozi Okonjo-Iweala said the travel constraints meant that many ministers and senior delegates could not have participated in face-to-face negotiations at the Conference. This would render participation on an equal basis impossible, she said

WTO members were unanimous in their support of the recommendations from the Director-General and the General Council Chair, and they pledged to continue working to narrow their differences on key topics like the WTO’s response to the pandemic and the negotiations to draft rules slashing harmful fisheries subsidies. The Director-General and Amb. Castillo urged delegations to maintain the negotiating momentum that had been established in recent weeks.
“This does not mean that negotiations should stop. On the contrary, delegations in Geneva should be fully empowered to close as many gaps as possible. This new variant reminds us once again of the urgency of the work we are charged with,” the DG said.

Director-General Okonjo-Iweala said she had scheduled a series of discussions over the weekend with ambassadors and visiting negotiators and that she planned to go ahead with these meetings. Negotiating group chairs said the same thing…

No date has been set for the rescheduling of the Ministerial Conference.



WTO | Ministerial conferences – MC12 briefing note
24 Nov 2021
Trade and health: WTO response to the COVID-19 pandemic
The COVID-19 pandemic represents an unprecedented disruption to the global economy and world trade, as production and consumption have been impacted across the globe. Since the pandemic outbreak, WTO members have been working on a holistic approach in formulating a multilateral response to COVID-19 which takes into account the exceptional character of the current crisis – in terms of the loss of human lives and the economic and social challenges.

[Excerpts; Editor’s text bolding]
MC12 outcome
Many delegations have taken the view that any MC12 outcome would be a political declaration and not a new legal instrument seeking to alter existing rights and obligations under the WTO agreements.

A large number of delegations have attached high priority to a meaningful outcome on the use of export restrictions and prohibitions, which have had a severe impact on the availability of essential products needed to combat the pandemic. These restrictions and prohibitions have also disrupted global supply chains and hampered the collective ability to increase global production of essential products, such as vaccines. Discussions have underscored the importance of clearly affirming members’ political resolve to keep markets open and commit to the use of export restrictions only as a last resort.

In the areas of trade facilitation, regulatory coherence and cooperation, and tariffs, members have stressed the importance of experience sharing as it can help identify best practices and prepare recommendations or guidelines. This work could be continued in regular WTO bodies, such as the Trade Facilitation Committee, the Technical Barriers to Trade (TBT) Committee and the Market Access Committee.


Further work in the WTO
Many members have called for further work in the WTO to address regulatory bottlenecks affecting production and supply of essential medical goods, i.e. by simplifying regulatory procedures and promoting the sharing of regulatory dossiers and data.

Delegations have acknowledged that tariff reduction or elimination can help facilitate access to essential products during a pandemic, whether on a temporary or permanent basis. In order to do so, the papers on vaccine inputs tariffs and bottlenecks on critical COVID-19 products prepared by the WTO Secretariat can be possible useful reference tools…


TRIPS Council
In parallel to the process facilitated by Ambassador Walker, members have been seeking convergence on how best to use the global intellectual property (IP) system to tackle COVID-19 in the context of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS).


Waiver request
Over the past year, members have engaged in discussions based on various texts. On 15-16 October 2020, India and South Africa introduced at the TRIPS Council document IP/C/W/669 requesting a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19. The proposal has since been co-sponsored by the delegations of Kenya, Eswatini, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt, the African Group, the LDC Group, the Maldives, Fiji, Namibia, Vanuatu, Indonesia and Jordan.

Since the introduction of the document, discussions have taken place in various formal and informal TRIPS Council meetings. Delegations have exchanged views, asked questions, sought clarifications and provided replies, clarifications and information on the waiver request. On 21 May 2021, the co-sponsors issued a revised proposal, which was circulated in document IP/C/W/669/Rev.1. On 29 September 2021, they circulated a summary of their interventions in document IP/C/W/684.

In the course of discussions on the revised waiver proposal, delegations have held focused discussions on the topics of scope, both from the perspective of products and of IP rights, on duration, implementation and the protection of undisclosed information.

All delegations remain committed to the common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all but discussions have shown that disagreement persists on the fundamental question of whether a waiver is the appropriate and most effective way to address the shortage and inequitable distribution of, and access to, vaccines and other
COVID-19-related products.


Proposal for a declaration on TRIPS Agreement and Public Health
In addition, a proposal (IP/C/W/681) for a draft General Council declaration on the TRIPS Agreement and Public Health in the circumstances of a pandemic, issued by the European Union, has also been discussed in meetings since its circulation on 21 June 2021.

The European Union proposal, which is backed by other developed country members, calls for limiting export restrictions, supporting the expansion of production, and facilitating the use of current compulsory licensing provisions in the TRIPS Agreement, particularly by clarifying that the requirement to negotiate with the right holder of the vaccine patent does not apply in urgent situations such as a pandemic, among other issues.


Discussions among members
While recognizing that intellectual property rights (IPRs) should not stand in the way of deploying and creating capacity or of ensuring equitable access to vaccines and therapeutics, several developed and developing members have cautioned that this can be attained while maintaining IP as the basis for incentivizing investment in innovation and licensing technology transfer so that members can effectively fight new strains of COVID-19 and any future diseases and pandemics. Some are particularly concerned that waiving IP rights might undermine the existing efforts and arrangements for large-scale production of vaccines that rely, in part, on the IP system.

Since the General Council held on 7 October 2021 and given the sense of urgency ahead of MC12, members have held intense discussions in various configurations. Some members have noted encouraging exchanges in small group discussions and bilateral meetings, which have helped to identify points of convergence on how to provide a common IP response to COVID-19. Others have said that further conversations that move the TRIPS Council towards evidence-based and pragmatic solutions should guide their discussions at this critical juncture.

At a formal meeting of the Council on 18 November, members formally adopted an oral status report to the General Council on 22-23 November indicating that the TRIPS Council has not yet completed its consideration of the revised waiver request. The TRIPS Council will therefore continue its consideration, including through small-group consultations and informal open-ended meetings, and report back to MC12 as stipulated in Article IX:3 of the Marrakesh Agreement. In addition, the TRIPS Council will also continue in the same manner its consideration of the other related proposals by members.

This means the TRIPS Council remains in session, potentially all the way to the Ministerial Conference. In this way, the Council can continue to provide a forum for delegations to provide transparency on their ongoing talks and to adopt any elements or solutions they may have found so that they can be recommended to ministers before MC12 starts….

WTO | intellectual property (TRIPS) – Documentation used in technical cooperation
Nov 26, 2021
Technical Cooperation – Key documents
I. TRIPS Legal texts and the relevant Conventions
II. The Doha Development Agenda
III. TRIPS and Public Health
IV. Review of TRIPS Article 27.3(b); Relationship Between the TRIPS Agreement and the Convention on Biological Diversity; Protection of Traditional Knowledge and Folklore
V. Geographical Indications
VI. Dispute Settlement
VII. Least Developed Country Members
VIII. TRIPS and Trade Policy Reviews, Accessions and Regional Trade Agreements
IX. Other Issues: TRIPS and e-Commerce, and TRIPS and Climate
X. TRIPS Implementation: notifications and reviews
Guide to the TRIPS Agreement