The article highlights the challenges countries could face despite the patent waiver for Covid-19 vaccine.

TRIPS waiver for Covid-19 vaccine

• The United States has finally relented and declared its support for a temporary waiver of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement for COVID-19 vaccines at the World Trade Organisation (WTO).
• Hopefully, the U.S.’s decision would cause other holdouts like Canada and the European Union to give up their opposition.
• While the U.S.’s decision is to be welcomed, the devil would be in the details.

The challenges after waiver

1) Conditions of the waiver

•  If the experience of negotiating such waivers, especially on TRIPS, were anything to go by, it would be too early to celebrate.
• In the aftermath of the HIV/AIDS crisis the WTO adopted a decision in 2003 waiving certain TRIPS obligations to increase the accessibility of medicines.
• However, this waiver (later incorporated as Article 31 bis in the TRIPS agreement) was subject to several stringent requirements such as the drugs so manufactured are to be exported to that nation only; the medicines should be easily identifiable through different colour.
• Given these cumbersome requirements, hardly any country, in the last 17 years, made effective use of this waiver.

2) Countries will protect the interest of pharma companies

•  India and South Africa proposed a waiver not just on vaccines but also on medicines and other therapeutics and technologies related to the treatment of COVID-19.
• So, the U.S. has already narrowed down the scope of the waiver considerably by restricting it to vaccines.
• Medicines useful in treating COVID-19 and other therapeutics must be also included in the waiver.
• While the U.S. would not like to be seen as blocking the TRIPS waiver and attracting the ire of the global community, make no mistake that it would resolutely defend the interests of its pharmaceutical corporations.

3) Lack of access to technology

• The TRIPS waiver would lift the legal restrictions on manufacturing COVID-19 vaccines.
• But it would not solve the problem of the lack of access to technological ‘know-how’ related to manufacturing COVID-19 vaccines.
• Waiving IP protection does not impose a legal requirement on pharmaceutical companies to transfer or share technology.
• While individual countries may adopt coercive legal measures for a forced transfer of technology, it would be too draconian and counterproductive.
• Therefore, governments would have to be proactive in negotiating and cajoling pharmaceutical companies to transfer technology using various legal and policy tools including financial incentives.

4) Domestic IP regulation

• While a TRIPS waiver would enable countries to escape WTO obligations, it will not change the nature of domestic IP regulations.
• Therefore, countries should start working towards making suitable changes in their domestic legal framework to operationalise and enforce the TRIPS waiver.
• In this regard, the Indian government should immediately put in place a team of best IP lawyers who could study the various TRIPS waiver scenarios and accordingly recommend the changes to be made in the Indian legal framework.

Conclusion

Notwithstanding the usefulness of the TRIPS waiver, it is not a magic pill. It would work well only if countries simultaneously address the non-IP bottlenecks.

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