The initiative by the Republic of South Africa (RSA) and India to temporarily suspend patent protection, primarily for vaccines, but also other medicinal products and medical devices for the prevention and treatment of COVID-19 (the so-called “TRIPS waiver”) has recently been actively debated worldwide. The proposal was submitted to the World Trade Organization (WTO) on October 20, 2020: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669R1.pdf&Open=True
Background: The TRIPS Agreement is a WTO agreement on trade-related aspects of intellectual property rights with the primary objective of reducing obstacles in international trade and ensuring appropriate protection of intellectual property rights.
This global initiative aims to ensure the speedy availability of essential medicinal products to overcome the COVID-19 pandemic worldwide.
TRIPS waiver now has been supported by about 100 countries out of 164 WTO member states. Opponents include Germany (especially opposed), Australia, Great Britain, Switzerland, Japan and Norway. But the decision within the WTO has to be taken by consensus.
The turning point was the political support from the USA for the proposal in early May 2021, together it being narrowed down only to vaccines against COVID-19. https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver
On June 4, 2021, the European Union released its counter-initiative on an intellectual property rights regime for vaccines and medicinal products against COVID-19. https://trade.ec.europa.eu/doclib/docs/2021/june/tradoc_159605.pdf
The EU’s position is that the main obstacle to the availability of vaccines and medicinal products is not patent protection under the TRIPS Agreement, but rather a lack of manufacturing facilities of appropriate safety and quality standards, insufficient amounts of raw materials for vaccines and a shortage of qualified personnel.
Of course, global initiatives that aim to facilitate access to medicinal products for the treatment and prevention of COVID-19 to the world’s population deserve support.
Suspending patent protection of the latest vaccines and medicinal products against COVID-19 on its own will not affect the situation with their availability, as the key element in this complex manufacturing process is unique knowledge of the manufacturing process or “know-how”. Therefore, in our opinion, from the perspective of Ukraine, technology transfer is the most effective tool for scaling up the manufacturing of vaccines and medicinal products against COVID-19, since in this process, the patent holder of the original medicinal product is granted a license and the availability of a patent does not interfere.
Thus, there is a need to intensify the efforts of governments of countries that have the relevant potential manufacturing facilities and to encourage, through diplomatic channels, the granting of such voluntary licenses by global developers.
