Addressing vaccine inequity during the COVID-19 pandemic: the TRIPS intellectual property waiver proposal & beyond

This article examines global vaccine inequality during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1995 WTO TRIPS Agreement, and specifically, the role that IP plays in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine inequity, we argue the TRIPS waiver proposal offers a necessary and proportionate legal measure for clearing IP barriers that cannot be achieved by TRIPS flexibilities. Finally, we reflect on the waiver in the wider context of TRIPS

The TRIPS intellectual property waiver proposal: creating the right incentives in patent law and politics to end the COVID-19 pandemic

The structure of global intellectual property law as incorporated in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is implicated in the current lack of COVID-19 vaccines, medical equipment, medicines and diagnostics (hereafter, ‘health-technologies’), which are needed to combat the pandemic. Although equitable access to vaccines is in the moral, political and economic interests of the global public and requires global solidarity, the phenomenon of COVID-19 ‘vaccine nationalism’ has brought into sharp relief the misalignment of current legal and financial incentives to produce and distribute vaccines equitably. The crisis further demonstrates the failure of high-income countries (HICs) to realise the promise they made at the time of the TRIPS negotiations in 1994, that by agreeing to the terms of TRIPS, lower and middle-income countries (LMICs) would benefit from technology transfer and the building of productive capacity. As such, the current crisis is revealing not only of inadequacies of how to deal with global emergencies, but also of deficiencies within the international ‘patent bargain’ itself. This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal initially put forward by India and South Africa in October 2020, which, as of May 2021, is supported by more than 60 states, and which has received statements of support from the World Health Organisation (WHO). We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance. The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. We make two arguments to this effect: first, the TRIPS waiver is a necessary and proportionate legal measure for clearing intellectual property (IP) barriers in a direct, consistent and efficient fashion, enabling the freedom to operate for more companies to produce COVID-19 vaccines and other health technologies without the fear of infringing another party’s IP rights and the attendant threat of litigation; and second, the TRIPS waiver acts as an important political, moral and economic lever towards encouraging solutions aimed at global equitable access to vaccines, which is in the wider interest of the global public

COVID-19 vaccines: wealthier nations, including the UK, must drop their opposition to the proposed TRIPS waiver at the WTO

Waiving intellectual property protections for COVID-19 vaccines would help boost production and distribution to the world’s poorer countries, particularly as infection levels are once again rising across the globe, and new mutations risk rendering existing vaccines ineffective. A temporary waiver proposal put forward by India and South Africa was nevertheless blocked by a number of wealthier nations, including the UK. In an open letter signed by over 120 academics, Hyo Yoon Kang, Aisling McMahon, Graham Dutfield, Luke McDonagh, and Siva Thambisetty urge that the waiver must be supported

Addressing Vaccine Inequity During the COVID-19 Pandemic: The TRIPS Intellectual Property Waiver Proposal and Beyond

This article examines global vaccine inequity during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1995 WTO TRIPS Agreement, and specifically, the role that IP has played in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine inequity, we argue the TRIPS waiver proposal should be viewed as offering a necessary and proportionate legal measure for clearing IP barriers that cannot be achieved by existing TRIPS flexibilities. Finally, we reflect on the waiver debate in the wider context of TRIPS and the need to boost global pandemic preparedness