Home ›› 06 Nov 2021 ›› Editorial
There are three main features of TRIPS agreement. They are:-
(i) Standards: In respect of each of the main areas of intellectual property covered by TRIPS Agreement, the agreement sets out the minimum standards of protection to be provided by each member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exception to those rights and the minimum duration of protection.
(ii) Enforcement: The second main set of provisions deal with domestic producers and remedies for the enforcement of IPR. The agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures.
(iii) Dispute Settlement: The agreement makes dispute between WTO members in respect of the TRIPS obligation subject to WTO’s dispute settlement procedures. Further, the agreement provides for certain basic principles, such as national and MFN treatment, and some rules to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the agreement.
Disciplines of IP protection are part of the multilateral trade system through WTO’s TRIPS Agreement. The Covid-19 pandemic has brought to bear again the tension between the protection of IPRs and Public Health; which had been addressed in 2001 through the Doha Declaration on TRIPS Agreement and public health. Having in view the TRIPS flexibilities, a working session at WTO Public Forum-2021 on 29th September,2021, discussed the role of intervention, temporary waiver and amendment in dealing with such tension and what further action could be taken under WTO rule in order to prevent access to medical products for all.
On the other hand, the South Centre, the intergovernmental think tank of developing countries based in Geneva could play an important role. In view of the central goal of World Intellectual Property Office (WIPO), the UN system is to support the achievement of SGDs. A balanced and flexible international IP system, with adequate safeguards can be supportive of the SGDs. Global supply and Covid-19 counter measures can be accelerated with increased co-operation and removal of IP barriers. WIPO should support its members to reach agreement on a temporary waiver of TRIPS Agreement failed to decide on 21st October, 2021 at WIPO member states meeting.
Very recently the US extended its support to the waiver of the TRIPS and would suspend IPRs on vaccines. Earlier, US along with EU, Norway, Canada, Australia, UK, Switzerland, Brazil, and Japan had been against waiver saying stringent protection is key to vaccine supply and the global effort to tackle Covid-19. The proponents of the waiver, India and South Africa with support of more than 100 countries have been trying to prepare a case in WTO since October, 2020. The proposed case of waiver cover patents, and trademarks on all products required to fight Covid-19 as long as the pandemic exists.
On the other hand, the civil society view the waiver on vaccines as essential to make the vaccine “people’s vaccine”, which should be universally available to all, free of cost at the point of delivery. US support for waiver be considered against the horrors of Covid-19 unfolding in many countries.
Five key areas are fundamental to vaccine equity for COVID-19 and tackling future pandemic.
(i) Problem is more acute as to how it (waiver) will work. WTO has already permitted temporary suspension of IPRs in the case of public health emergencies like Covid-19. Doha Declaration reaffirmed the issuance of compulsory licensing on patent drugs in order to produce generic version. Countries without manufacturing capacity can import generic version of drugs in co-operation with exporting / manufacturing countries.
(ii) Details of Covid-19 vaccine waiver are all still to be worked out and require WTO members’ consensus. This would take indefinite time or it could be impossible because of the consensus clause of WTO. So, the momentum of support and effective trade and health diplomacy is a key.
(iii) Biden administration has indicated that it would be willing to waive patent protection for vaccines. In addition to that India and South Africa’s proposal included treatments, diagnostic kits, ventilators manufacturing components and protective gear. These are essential to the patent waiver to fight Covid-19.
(iv) Poor countries will be unable to produce vaccine. WTO waiver will be more in form than substance. Pharmaceutical Companies are to be given incentive to share knowledge and build capacity in developing and least developed countries.
(v) Tempering with TRIPS amendment risks rolling back existing facilities. This may happen when there is restriction placed on export of generic version of vaccines to those countries with no manufacturing capacity. Emergency measure to respond to Covid-19 must not cause harm for longer term flexibilities on patent and licensing.
European Union’s opposition to waiver
European Union’s opposition to use waiver to TRIPS provision to allow easy immunization on the following grounds:
(i) EU claims that IP is not a barrier to scaling up the manufacturing of vaccines or other health products needed for Covid-19 response, suggesting that sharing of IP would not immediately speed up manufacturing.
(ii) The waiver will not automatically result in widespread and diversified manufacturing.
(iii) Dose sharing and COVAX will be enough to deliver universal and equitable vaccine access.
(iv) Temporary waiving patent monopolies will end all future innovation to develop vaccine and drugs.
(v) Streamlining compulsory licensing systems are enough to raise the challenge of Covid-19 health response.
(vi) Voluntary licensing is sufficient and industry-led efforts can cope with shortfalls and delays.
(vii) Easing export restrictions will eliminate the urgent need for an IP waiver to address acute supply shortages.
Bangladesh in collaboration with WTO and WIPO
Bangladesh should support to the demand of waiver of TRIPS Agreement provisions at least for the time being to face the challenges of Covid-19. In addition to that Bangladesh should undertake joint collaboration with other LDCs to carry out assessment of priority needs for technical and financial support to implement the TRIPS Agreement. The priority needs should need:
(i) Financial and logistic assistance to complement ongoing intellectual property reform programs, such as funds for hiring IP Policy Analysts;
(ii) Setting up a “National Intellectual Property Forum” through which representatives from government, the private sector and Civil Society to formulate a national policy framework;
(iii) To develop a national strategy on IP
(iv) Initiate specific activities for updating the IP legal framework and administrative infrastructure; Harnessing effective framework for transfer of technology and compulsory licensing system;
(v) Strengthening enforcement and regulation;
(vi) IP should be used as a tool for Socio-economic development, through the development of a national scientific technological base.
The writer is former Director General, EPB. He can be contacted at hassan.youngconsultants@gmail.com
