Securing the TRIPS Waiver the World Needs: What Comes Next?

The confetti is still flying after the Biden administration’s climbdown from obstructing text-based discussions at the World Trade Organization (WTO). The U.S. government now supports allowing countries to temporarily waive enforcement of intellectual property (IP) rights on at least some COVID-19-related health technologies without fear of state-state dispute settlement. Global pressure from activists, academics, world leaders, legislators, and everyone who is committed to health justice helped deliver this outcome. But we are far from out of the woods and certain key steps still need to be taken.

First, the Biden administration appears focused only on vaccines. In contrast, the India/South Africa waiver proposal covers a much broader range of critical medical supplies, including medicines, diagnostic tests, medical devices, ventilators, personal protective equipment, and covid-specific mobile health technologies. Pandemic-stricken countries in the Global South don’t have the luxury of not thinking about other products in short supply, including treatment for unvaccinated people who become infected. Likewise, the U.S. and the WTO’s projected timelines (December 3, 2021) do not meet the urgency of the current moment – a decision should be taken at the June 8 WTO meeting. In addition, the U.S. should support efforts to require vaccine and other medical tool manufacturers to transfer underlying technology and know-how as expeditiously as possible to regional hubs in underserved countries, though provision can be made for compensation and other incentives to do so. Finally, the U.S. should not seek to unduly shorten the duration of the waiver as it will take time to set up alternative manufacturing sites, to bring essential goods to the market, and to recoup start-up and repurposing costs.

Fortunately the U.S. Trade Representative’s statement on the waiver proposal recognized the need to cover all IP protections, not just patent protections. Waiving enforcement on patents alone would be insufficient to ensure access to trade secrets, confidential information, copyrighted material, and industrial designs that also create monopoly barriers to COVID-19 health products. Big Pharma, on the other hand, is steadfastly misinterpreting both the U.S. statement and the India/South Africa proposal as addressing patents only. This is a flat-out lie that then allows industry to say that technology transfer is the real bottleneck as if countries would not have power under the waiver to force disclosure and transfer of confidential information and trade-secret protected formulas, materials, and processes.

The U.S. is not the only player promoting a narrowing of the waiver. Norway and the E.U. are also focused on whittling down the waiver and using marginally expanded TRIPS flexibilities like compulsory licensing. Even the Gates Foundation, whose co-leader Bill Gates has been an infamous and trenchant beneficiary and defender of IP rights, has now voiced tentative support for a waiver, but only if it is “narrow.”

We need a waiver now – and we need it to be broad in coverage and to last long enough to finish the job of creating new manufacturing capacity and equitably distributing needed supplies. Although rapid consultations might result in an improved text with more clarification of the COVID-specific medical technologies covered by the waiver and a better defined duration, these negotiations should take days, not months. That timeline will be helped if more countries co-sponsor the waiver.

The reluctance of some countries to co-sponsor the waiver proposal does not doom its prospects, contrary to erroneous assertions that total consensus is required. In fact, the relevant WTO rules allow for adoption based on 75% of Member States voting. This might well be less than the full 164 Members of the WTO. Thankfully, it is no longer true that the governments of  a handful of rich countries will be able to tell billions of people in the Global South that they must stand in line and die.

However, it is also true that the waiver is only part of the solutions. Countries will have to implement and use the waiver domestically and will need to set up systems of coordination and supply chain continuity with other countries. And countries, especially rich countries like the U.S., also developing countries themselves, development banks, and other funders will need to invest in new and repurposed manufacturing capacity in regional hubs. Companies should be incentivized, cajoled, or if necessary forced to transfer vaccine technology platforms to other producers via participation in the WHO COVID-19 Technology Access Pool and Technology Transfer Hub. Indeed, preemptive voluntary tech transfer by companies and capacity investments by governments could and should begin now, even as the waiver text is being negotiated. There’s no excuse for not starting the work to beat COVID-19 now.