On June 17, 2022, WTO members adopted a waiver to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) allowing suspension of patent related to the Covid-19 pandemic, which is the result of a year and a half of intense debate. Already there is a lot of alarm in the industry about this measure, but what does it really mean? The “Patent Waiver” revolution or storm in a glass of water?

 

A fast-track procedure for obtaining compulsory licenses

The adopted waiver differs from the initial proposal by South Africa and India in October 2020. The latter proposal envisaged a more comprehensive waiver, more akin to expropriation, of TRIPS obligations for the production and availability of Covid-19 treatments. However, the waiver finally adopted is based on the European Union’s counter-proposal of October 2021, which focuses on the use of the existing TRIPS flexibility of compulsory licenses. As a reminder, compulsory licenses limit the use of intellectual property rights, but guarantee royalties to their holders, which is not the case with expropriation.

In fact, the waiver allows a WTO member to exploit a patent, which relates to a technique linked to a Covid-19 vaccine, without the consent of the right holder via a compulsory license that will be obtained through an accelerated procedure: any national legal mechanism, such as a decree for example. In sum, the idea is to facilitate the obtaining of compulsory licenses for certain patents, which requires that member countries already have such a mechanism in their national laws.

Regarding remuneration of rights holders, reference is made to the humanitarian and non-profit nature of the provision of vaccines, which allows for flexibility in determining the level of royalties to be paid. Reference is made to WHO/United Nations Development Programme (UNDP) guidelines on remuneration for this purpose.

 

Scope of the measure

It is specified that patents on products as well as on processes are concerned. However, only vaccines are currently concerned. Other technologies are still excluded from this decision, but Members have committed themselves in paragraph 8 to decide within the next six months whether to extend its scope to include the production and supply of therapeutic and diagnostic products.

However, the measure seems to be limited to developing countries. It is stated that while developing countries are eligible, countries with “existing” production capacity are encouraged to make a “binding commitment not to avail themselves of this decision. Yet it is precisely these countries that would be most likely to implement the waiver. On the other hand, the states waive the application of Article 31(f) of TRIPS, according to which production under the decision must be primarily for the domestic market, although re-export of products is discouraged.

As for its duration, the mechanism can be applied for the next 5 years. This duration will be reviewed and may be revised annually by the General Council.

 

Finally, if the “Patent Waiver” does not constitute a revolution, we can nevertheless neglect the important source of restrictions that it could constitute in the future for right holders. However, as it stands, it is more like a sign of political goodwill towards developing countries, intended to facilitate their access to the production of “Covid-19” vaccines, although the success of the initiative will probably rest, in the end, more on the willingness of the rights holders to transfer their know-how.


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Kluwer IP Law
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3 comments

  1. “Delevoping countries” in WTO context effectively means any country that self-proclaims to be one. The extension of scope and duration is decided by the WTO General Council, in which each country has 1 vote and in which developing countries have the majority. The “not-for-profit compulsory license” allows export of vaccines (which actually is the very point of this waiver), and we have seen how for some nations made a huge propaganda wave by selling, for “humanitarian” fees, anti-infection goods.

    This waiver will allow totalitarian states to renew their propaganda efforts where, on the other hand, patentees – which are commercial and not state-run enterprizes – will get all the blame. Plus it allows all self-proclaimed developing states to build up an mRNA industry more or less free of charge. Because, let’s face it, nobody seriously expects that the installations created during the duration of the patent waiver will be scrapped once the patent waiver ends (if it ever does).

    Just to be sure: I think it’s a scandal that some countries don’t have the capacities to create an industry to fight diseases. But I think that “The West” could and should have acted smarter.

  2. It should not be forgotten that the mRNA vaccines are themselves dependent from other patents.

    For instance, the lipids needed to transport the mRNA particles are themselves protected by patents. Why should the holders of those patents waive their rights as those lipids have other uses.

    Beside the patents, there is also a large amount of know-how which is not protected by patents, but necessary in order to arrive at an industrial production of vaccines. This know-how will certainly not be given for free.

    It sounds and looks politically opportune to speak about waiving patent rights, but in the end it will not help a lot. It will remain a storm in a glass of water.

    In this respect, Trurl’s comments are not really helpful.

  3. With Covid-19 (and everything else) it all comes down to this…… “When people who are honestly mistaken learn the truth, they will either cease being mistaken, or cease being honest!” (Anonymous)

    Throughout your entire life you continually DECIDE to either stop being mistaken –or stop being honest– when learning the truth. Which one of the two true answers applies to YOU in terms of the Covid-19 truth? Read “The 2 Married Pink Elephants In The Historical Room –The Holocaustal Covid-19 Coronavirus Madness: A Sociological Perspective & Historical Assessment Of The Covid “Phenomenon”” … https://www.rolf-hefti.com/covid-19-coronavirus.html

    “The inhumane abominations, issued by the highly credentialed professional class of psychopaths-in-control and their lauded sycophantic minions, of “No Jews Allowed” and “No Colored People Allowed” of yesterday is the “No Unvaccinated People Allowed” of today.” (from cited article)

    ACTIVE resistance against the criminal establishments around the world will greatly increase the sooner someone TRULY understands that the ruling cabal and their minions, anywhere around the globe, are PSYCHOPATHS (see referenced article above for totally irrefutable evidence).

    By “TRULY understands” I mean that Hollywood flicks and the entertainment industry at large have presented a deliberately erroneous picture of psychopaths which keeps the public misinformed about what and who psychopaths really are (eg most psychopaths are not overtly violent) but they are ALWAYS exploiters, deceivers, liars, manipulators, and destroyers (the Highly Destructive Fake Covid “Pandemic” is ONE fitting example out of countless others) and therefore they are NOT people to ever respect, listen to, admire, vote for, follow and obey BUT to ACTIVELY fight and jail for life (see cited source above).

    ““We’re all in this together” is a tribal maxim. Even there, it’s a con, because the tribal leaders use it to enforce loyalty and submission. … The unity of compliance.” — Jon Rappoport, Investigative Journalist

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