India, South Africa ask WTO to waive IP obligations for medical products during Covid-19 pandemic

To ensure adequate production, availability and distribution of crucial medicines and vaccines globally during the on-going Covid-19 pandemic, India and South Africa have asked the World Trade Organisation (WTO) to provide members with a waiver from intellectual property obligations under the Trade Related Intellectual Property Rights (TRIPS) agreement for a limited period.

“Internationally, there is an urgent call for global solidarity, and the unhindered global sharing of technology and know-how in order that rapid responses for the handling of COVID-19 can be put in place on a real time basis,” a joint communication submitted by India and South Africa to the WTO on Friday pointed out.

In these exceptional circumstances, the duo said that the Council for TRIPS should recommend, as early as possible, to the General Council a waiver from the implementation, application and enforcement of relevant sections of the TRIPS Agreement in relation to prevention, containment or treatment of Covid-19.

The waiver should continue until widespread vaccination is in place globally, and the majority of the world's population has developed immunity, the paper added.

The TRIPS agreement is the most comprehensive multilateral agreement on intellectual property providing a wide range of protection including patents, trademark, copyright, geographical indication, industrial designs.

Although during emergencies the TRIPS Agreement provides flexibilities such as allowing countries to issue compulsory licences to generic producers to manufacture patented drugs, the joint paper pointed out that the processes were difficult for many countries to follow.

“There are several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients,” the paper said adding that it had also been reported that some WTO members had carried out urgent legal amendments to their national patent laws to expedite the process of issuing compulsory licenses.

Beyond patents, other intellectual property rights may also pose a barrier, with limited options to overcome them.

“In addition, many countries especially developing countries may face institutional and legal difficulties when using flexibilities available in the TRIPS Agreement. A particular concern for countries with insufficient or no manufacturing capacity are the cumbersome and lengthy process for the import and export of pharmaceutical products,” the communication said.

Making a strong plea for the exemption, the paper pointed out that as of October 1, 2020, there were about 333,722,075 confirmed cases globally with 1,009,270 confirmed deaths and it was disproportionately affecting developing and least developed countries.

“Effective response to Covid-19 pandemic requires rapid access to affordable medical products including diagnostic kits, medical masks, other personal protective equipment and ventilators, as well as vaccines and medicines for the prevention and treatment of patients in dire need,” the communication said adding that a waiver from IP obligations could help achieve that.

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