Covid-19 Vaccines, IP Waivers, TRIPS, the WTO & Compulsory Licensing

On Wednesday U.S. Trade Rep Katherine Tai announced support of a waiver of IP protections. This is significant in many ways, not the least of which is the end of a hard American line against any softening of IP policy. Many of our colleagues are helping us understand the implications and meaning of this announcement, and I'm talking about it with a reporter this afternoon. The gist of it is that a waiver needs to be negotiated, can mean different things, and is very likely to be limited to the countries who cannot afford to pay. South Africa and India were the countries who proposed such a waiver from the World Trade Organization, and now there seems to be more willingness from the West to move toward such an agreement.

A waiver basically means that a country won't be in violation of TRIPS if it issues a compulsory IP license to manufacture vaccines (and also COVID-19 drugs). TRIPS already provides that during a crisis country can issue a compulsory patent license, but the proposed waiver would be broader as it will include also copyright and trade secrets and for any use, not just domestic. Still, many worry that the bottleneck at the moment is not IP but manufacturing capacities and the willingness of companies to share their know-how. Even with a waiver, it would be very difficult to force companies to share their secrets without their willing cooperation. 

For a good review of the issues, read Jorge Contreras here who as I blogged about in April 2020 has been a leader of the Open Covid Pledge.