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Info Service on Intellectual Property Issues (Jul21/03) Geneva, 15 Jul (D. Ravi Kanth) – The co-sponsors of the temporary TRIPS waiver on 14 July remained buoyant about the progress to be made on the waiver by the end of the month at the World Trade Organization, despite repeated hurdles being created by a few countries, including the European Union, said people familiar with the development. At an informal TRIPS Council meeting, the co-sponsors of the TRIPS waiver proposal – South Africa, India, Pakistan, Egypt, Tanzania on behalf of the African Group, and Venezuela among others – clarified several repeatedly asked questions on the implementation of the proposed waiver for ramping-up production of diagnostics, therapeutics, and vaccines across countries in combating the worsening COVID-19 pandemic, said people, preferring anonymity. Several other countries – Nigeria, Jamaica, China, Bangladesh, and Chad on behalf of the least-developed countries (LDCs) – strongly supported the waiver as a pragmatic solution in terms of the WTO’s response to the pandemic that has so far already claimed more than 4 million lives across countries. In response to the repeated questions from Switzerland and the United Kingdom about the implementation of the waiver, the co-sponsors assured members that they are ready to answer any questions, provided they are novel in nature and are not repeated in a circular framework, said people, who asked not to be quoted. The co-sponsors drove home the message on the need for an urgent outcome on the waiver so as to scale-up the production of all COVID-19 related health products and transfer of technologies for saving people from the worsening pandemic. TRIPS CHAIR’S REPORT At the meeting, the chair of the TRIPS Council, Ambassador Dagfinn Sorli from Norway, read out his draft report for members to comment on and adopt at a regular TRIPS Council meeting later this month. The Chair’s report, sent to members on late evening on 14 July, and obtained by this writer, states as follows: “At the TRIPS Council on 15-16 October 2020, India and South Africa introduced document IP/C/W/669, requesting a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19, which had been circulated on 2 October 2020 and has since been co-sponsored by the delegations of Kenya, Eswatini, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt, the African Group, the LDC Group, the Maldives, Fiji, Namibia, Vanuatu, Indonesia and Jordan. “Since the last status report to the General Council on 5-6 May 2021, the co-sponsors issued a revised proposal on 21 May 2021 which was circulated in document IP/C/W/699/Rev.1. The revised waiver request was presented at an informal open-ended meeting of the Council on 31 May, and introduced at its formal meeting on 8-9 June 2021. Following the arrangement of a text-based process, discussions continued in small-group consultations, at informal open-ended meetings on 17 and 30 June, and 6 and 14 July [, and at a formal meeting of the Council on 20 July]. “A proposal for a draft General Council declaration on the TRIPS Agreement and Public Health in the circumstances of a pandemic, issued by the European Union on 21 June 2021 and circulated in IP/C/W/681, has also been discussed in those meetings. “In the context of the text-based process, delegations held focused discussions on the topics of “scope”, both from the perspective of products and of IP rights, on “duration”, “implementation” and on “regulatory data”. “Delegations engaged positively and their detailed substantive exchanges helped clarify various aspects and nuances of positions. While delegations remain committed to the common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all, disagreement persists on the fundamental question of whether a waiver is the appropriate and most effective way to address the shortage and inequitable distribution of vaccines and other COVID-related products. “This means that the TRIPS Council has not yet completed its consideration of the revised waiver request. The TRIPS Council will therefore continue its consideration of the revised waiver request and report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement.” After presenting the above report, the chair suggested that members can provide their comments or suggestions on the proposed language by the end of this week so that the final report can be adopted at the regular TRIPS Council meeting scheduled for 20 July. Apparently, the draft report has suggested that the TRIPS Council has not yet completed its consideration of the revised waiver request and will continue its consideration of the revised waiver request to extend the discussions. During the small-group consultations, the co-sponsors of the TRIPS waiver proposal responded on the topics of “scope”, both from the perspective of products and of IP rights, on “duration”, on “implementation” and on “regulatory data”. A handful of countries, including Switzerland and the United Kingdom, stuck to their oft-repeated questions about the need for the waiver and how it will be implemented, said a person, who asked not to be quoted. Much of the small-room consultations were focused on the issue of implementation as well as transparency-related issues, which were raised since October last year. Interestingly, the co-sponsors were asked about the implementation of the waiver within their own jurisdictions, a question that seemed so tautological, as the implementation of the waiver will be undertaken according to domestic legal and parliamentary processes, said another person, who asked not to be quoted. In the face of what appears to be “stonewalling and diversionary” tactics, the co-sponsors assured the handful of countries about their willingness to continue the exchanges on substance, even on issues such as “regulatory data”, “product coverage” and issues related to “technology transfer”. The chair sought to know whether the formal TRIPS Council meeting can be held on 20 July due to the ministerial meeting on fisheries subsidies on 15 July. He asked members to decide whether they want to hold a new round of small-group consultations in the week leading up to the General Council meeting on 27-28 July. INTERVENTIONS BY CO-SPONSORS OF TRIPS WAIVER At the meeting, South Africa reiterated the value of small-group consultations and other meetings held so far, notwithstanding the differences. It rejected arguments advanced by some members, for limiting the discussion only to patents. South Africa suggested that other issues such as those that go beyond patents and those that are designed to ramp up production and supply of vaccines, such as trade secrets must be discussed as well. The South African delegate emphasized that the co-sponsors responded to all the questions posed concerning issues such as legal certainty and duration, as well as implementation of the waiver. South Africa expressed confidence about the overall progress within a set time-frame to ensure the early passage of the waiver. India highlighted the increased outreach efforts as well as bilateral engagement for clarifying the underlying rationale behind the waiver proposal. New Delhi, however, observed that there seems to be little enthusiasm among some members to engage bilaterally to discuss the text of the proposal. Although members have been generally receptive to bilateral meetings on fisheries subsidies, they displayed less enthusiasm on the waiver discussions, it said. Pakistan called on members, particularly those who agreed to enter into text-based negotiations, to remain truthful to their commitment to engage meaningfully to conclude the discussions on the waiver proposal. Pakistan specifically mentioned that the waiver proposal should not be clubbed together with other proposals, suggesting that each proposal must be dealt with on its own merits. It requested members to avoid repeating circular questions or circular references that hark back to the fundamentals of why the waiver is necessary or is it helpful to advance towards a meaningful outcome. It emphasized that all the proposals on the table must be considered on their own merit and not as alternatives to each other. US STATEMENT In a brief statement, the United States, which brought about a decisive turn to the text-based discussions on the waiver, praised South Africa and India for their sustained efforts to advance the discussions on the waiver, said a person, who asked not to be quoted. The US also complemented the EU for its proposal. Washington stressed the importance that all formal proposals be given due consideration by the TRIPS Council and welcomed possible additional proposals from other members. The US urged members to focus on proposals that are pragmatic, which can receive consensus at the TRIPS Council in a timely manner. The US welcomed the Chair’s decision to prepare a status report, insisting that it must provide a factual description of the process and status since the last report. THE EU’S CLAIMS The European Union touted much about its proposal relating to the use of compulsory licensing, while claiming that the waiver is not the right choice, said people, who asked not to be quoted. The European Union, which is challenging the waiver proposal while promoting its own proposal, called for the best way forward to ensure that the IP system continues to contribute to enhancing equitable access to COVID-19 vaccines and medicines. The EU, which is promoting the trade and health initiative together with its allies in the Ottawa Group, reiterated its “theological” belief in the global IP system. However, there is growing evidence that the global IP system has rarely worked for the public good, and it is known for putting profits and patents before human lives, said a participant, who asked not to be quoted. The EU said the IPR system can play an enabling role in deploying existing capacity, or creating new capacity for the production of COVID-19 vaccines and medicines, while keeping intact necessary incentives for innovation. The EU again repeated what it has said in previous meetings, namely, that the way to advance is not to gloss over the existing important divergences and to pretend that there is an agreement on the rationale and the needs of the waiver where clearly this is not the case. The other members of the Ottawa Group – Mexico, Singapore, Chile and Norway – raised their questions, including on the issue of legal certainty. These countries, who are aggressively supporting the trade and health initiative, said discussions so far have not shed light on what the trading relationship would be between a member who implements the waiver, and a member who does not, or even between members who implement the waiver partially but in different ways, and on whether there will be some sort of notification system for each member to publicize what exactly they are waiving.
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