2022 · COVID-19 · International Intellectual Property Law · IP Policy · TRIPS Agreement · Vaccines · WTO

The Official Text of the Proposed TRIPS Waiver for Covid-19

The official draft text of the proposed TRIPS Waiver for covid-19 has now been released. It was circulated to members of the TRIPS Council on the 3rd of May 2022. The official draft text was accompanied with a cover letter from the Director-General of the WTO who noted that the text was the outcome of a process that ‘tried to support an informal group of Ministers to come together around what could be a meaningful proposal, without prejudice to their respective positions, that could provide a platform to be built upon by the membership.’ It should be noted that this group of Ministers refers to representatives from the EU, USA, South Africa, and India.

I have previously written a preliminary analysis of the unofficial version of the draft text that was leaked in March 2022. The current official draft text is more or less similar to the March version but some provisions are now in square brackets. The two provisions now in square brackets (highlighted below) indicates that these provisions are still subject to negotiation and have not been agreed upon. Indeed, the whole proposed text is still subject to negotiation amongst all the members of the TRIPS Council and it is not yet completely clear what the final text of the proposed waiver would look like. In this post, I will briefly highlight the two provisions in the official version of the draft waiver proposal that are now in square brackets.

The first noteworthy bracketed provision is footnote 1 which now reads thus:

[For the purpose of this Decision, all developing country Members are eligible Members. Developing country Members with capacity to export vaccines are encouraged to opt out of this Decision.] [For the purpose of this Decision, developing country Members who exported more than 10 percent of world exports of COVID-19 vaccine doses in 2021 are not eligible Members.]

In the earlier unofficial March version of the proposed waiver, footnote 1 is not bracketed and it provides that:

For the purpose of this Decision, an “eligible Member” means any developing country Member that exported less than 10 percent of world exports of COVID-19 vaccine doses in 2021.

The second noteworthy bracketed provision is paragraph 3(a) which remains unchanged from the earlier March version but is now in square brackets and accompanied by footnote 3:

(a) [With respect to Article 31(a), an eligible Member may issue a single authorization to use the subject matter of multiple patents necessary for the production or supply of a COVID-19 vaccine. The authorization shall list all patents covered. In the determination of the relevant patents, an eligible Member may be assisted by WIPO’s patent landscaping work, including on underlying technologies on COVID-19 vaccines, and by other relevant sources. An eligible Member may update the authorization to include other patents.]3
Footnote 3: This paragraph is under further consideration as to whether to keep or delete.

It should be noted that the duration of the proposed waiver still remains in brackets as in the March version. Thus, paragraph 6 of the official version is the same as paragraph 6 in the unofficial version:

An eligible Member may apply the provisions of this Decision until [3][5] years from the date of this Decision. The General Council may extend such a period taking into consideration the exceptional circumstances of the COVID-19 pandemic. The General Council will review annually the operation of this Decision.

It remains to be seen what WTO members will think about this version of the proposed waiver. It is possible that further changes will be made to the text before it is adopted. To reiterate, like the March version, the official version of the proposed waiver is still confined to the compulsory licensing of patents. It is also still restricted to the production and supply of covid-19 vaccines although paragraph 8 still provides that WTO members will decide on any extension to cover the production and distribution of covid-19 diagnostics and therapeutics within six months from the date that the waiver is adopted.

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