TRIPS waiver of Covid Vaccine Import

This article on ‘TRIPS waiver of Covid Vaccine Import‘ was written by an intern at Legal Upanishad.

Introduction

TRIPS is a convention at the International Level to deal with all of the Rights associated with Intellectual Property. Intellectual Property is that form of property that cannot be Seen or Touched, but can be Felt(Intangible), but can be felt as opposed to that form of property that can be seen, felt, and touched(Tangible). The Rights associated with Intellectual Property are known as Intellectual Property Rights. The Rights associated can vary depending upon the type of Intellectual Property but the common ones are Assigning, Transferring, Licensing, etc.

TRIPS

TRIPS (Trade-Related Aspects of Intellectual Property Rights) is a multilateral framework at the international level which provides for the setting up of minimum standards for the protection of the Rights of Intellectual Property by the member nations which are a part of the TRIPS Agreement. It was introduced at the end of the Uruguay Round of the General Agreement on Trade and Tariffs (GATT) and came into force in 1955.

The entire TRIPS Agreement has been divided into VII Parts which deal with the Rights of Intellectual Property and is as follows:

1. The General Provisions and Basic Principles
2. Standards for the availability scope and use of IPR.
3. IPR Enforcement.
4. IPR Acquisition and Maintenance.
5. Provisions for Settlement of Dispute and Prevention of Dispute.
6. Arrangements of a Transitional Nature.
7. Arrangements of an Institutional Nature.

Part II of The TRIPS Agreement has mentioned what Intellectual Property it Covers and is as follows:

1. Copyright and Related Rights.
2. Trademarks.
3. Geographical Indications.
4. Industrial Designs.
5. Patents.
6. Layout-Designs of Integrated Circuits.
7. Protection of Undisclosed Information.
8. Control of Anti-Competitive Practices in Contractual Licences.

A waiver on the Import of Covid Vaccine

In the month of October 2020, South Africa and India were the first two countries who had requested The World Trade Organisation( WTO) to allow all the countries of the world to choose to neither enforce nor grant Rights on Intellectual Property including Patents on Technology, Diagnostic Techniques, Medicinal Drugs and The Vaccines on Covid-19 as long as Herd Immunity is achieved on a global level or as long as the Pandemic exists. The Patent waiver is a good initiative, however, some scholars have a dissenting view on the actual, material utility, and practicableness of the Liberalization of Patents.

It is proposed that concessions can be made to The TRIPS Agreement, on the concept of Covid-19 being a pandemic that affects all and the also on the concept that vaccines during the life-threatening disease of Covid-19 are to be considered for the common benefit of all similar to air and water which are for the common benefit of all. Practically speaking if rights on patents are put on hold, the establishments which deal in the manufacture of Vaccines would be put at a loss.

The need for patent waivers has already been considered under The Doha Ministerial Conference held in 2001which has highlighted the need for the production of low-priced replicas of medicines, which are still under patent protection by developing countries in health emergencies.

Instead of a direct waiver of the patent right, some suggested methods are:

1. Donation of vaccines directly by the Countries which have a High Income.
2. Cost Reduction of The Lines of Production.
3. The Reduction of protection on Patents by way of rights.
4. Providing Patent waivers in a preferential manner to those countries that manufacture a considerable portion of the vaccines used globally.

Why should the Right on Patent be Liberalised?

1. For the Motion
   • One of the leading Supporters of Liberalization on the waiver of Patent Rights is US President Joe Biden. He is of the view that by adopting patent liberalisation, the countries which have low income can reduce the cost of vaccine production to such an extent that it would enable large-scale production. The Reality is that even though the vaccine price is less in countries with less income as compared to middle-income and high-income countries, the cost of vaccine production is so high even after the combined efforts of the entire world, low-income countries are not able to afford it.

The Waiver of Patent Rights has two benefits which are as follows:

1. Through the production of Patents in an independent manner, a large number of the population could be vaccinated and thus able to achieve herd immunity on a global level.
2. Also, the countries which do not have lower incomes have an advantage as they face the problem of an influx of migrants on a regular basis. If these migrants are unvaccinated, the herd immunity that the nation might have achieved would be lost.

• Another factor is that the waiver can also be requested for potential drugs against Covid-19. The same has already been requested by South Africa and India, when they requested WTO for a waiver in October 2020.

2. Against The Motion
   • If the waiver on the patent is liberalised, the pharma companies will lose interest in the manufacture of vaccines or in making efforts to find a more enhanced version of the already available vaccines. It is to be noted that the Covid-19 Pandemic may be just the first of many life-threatening diseases we may face in the future. Thus the requirement for vaccines in the future may increase.
   • A Concern is also there that the vaccine produced by Countries that there could be problems with sub-standard quality vaccines. These sub-standard qualities could be due to any reason such as a lack of quality manufacturing process/ lack of quality control over the genetic materials. These issues can have far-reaching negative effects.

Conclusion

Many people have expressed their views on the liberalization of the right to patent. Some say that this move will have tremendous benefits for the developing economies of the world. The majority of the public is with this view. However, if the element of safety, health, and quality are to be considered, it is the view that the liberalization of the right on patent should be well thought upon.

To ensure that the product which is available in the market has a certain quality, the establishments which have the requisite infrastructure, and technical know-how should be the ones manufacturing the vaccines.

To enable this, the transfer of technology and financial assistance is needed from high-income countries to lower-income countries. India being the vaccine house of the world can play a major role in ensuring the supply of Vaccines for Covid-19 for the entire globe. India has the manufacturing capability for mass production.

List of References

1. Joe Mathew, “Truncated India-S Africa proposal on TRIPS waiver limits concessions to Covid vaccine”, Fortune India, 16 March 2022, available at: https://www.fortuneindia.com/macro/truncated-india-s-africa-proposal-on-trips-waiver-limits-concessions-to-covid-vaccine/107464
2. “Proposed TRIPS waiver a hollow diplomatic compromise with little practical impact”, Medicine Law and Policy, 12 April 2022, available at: https://medicineslawandpolicy.org/2022/04/proposed-trips-waiver-a-hollow-diplomatic-compromise-with-little-practical-impact/
3. Katarina Foss, “The IP waiver and COVID-19: reasons for unwavering support”, National Library of Medicine, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8754690/