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India-SA to revise WTO proposal, US wants patent rights waived ‘only’ for Covid vaccines

US is learnt to have told both India & South Africa that while it supports temporary TRIPS waiver, it will 'only' be applicable to Covid vaccines and not to medicines, ventilators etc.

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New Delhi: India and South Africa are now working out a revised joint proposal for TRIPS waiver on Covid-related medical products to be submitted at the Geneva-based World Trade Organization (WTO), even as differences emerge with the US over the scope of the temporary suspension of intellectual property and patent rights, ThePrint has learnt.

India and South Africa had in October 2020 jointly forwarded a proposal to the WTO seeking a temporary waiver on intellectual property rights on Covid-related products to enhance access to vaccines, therapeutics, medicines, diagnostic kits, medical masks, other personal protective equipment and ventilators, among others.

While over 120 nations have supported the proposal, all 164 WTO member countries are yet to begin negotiations on the matter at the WTO to arrive at a consensus on this issue.

The joint proposal had also said the waiver should be in place “until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity hence we propose an initial duration of [x] years from the date of the adoption of the waiver”.

India and South Africa are now working out an “amended proposal” under which both countries are likely to propose a reduction of the duration of the TRIPS waiver compared to what was being presented earlier, multiple sources told ThePrint.

The sources said this is being done keeping in mind the fact that it will take at least 12-15 years to achieve global herd immunity for the novel coronavirus.

The Agreement on Trade-Related Aspects of Intellectual Property Rights, also known as the TRIPS Agreement, came into effect in January 1995. It is a multilateral agreement on intellectual property.

Earlier this month, the WTO had asked India and South Africa were asked to submit their revised proposal even as the US decided to support the move on 5 May, in order for the WTO to hold an informal meeting of the TRIPS Council in the second half of this month, which is likely to take place on 30 May.

After that meet, the TRIPS Council will be meeting formally on 8-9 June when the revised texts will be up for discussion. The actual negotiations on the waiver will start after that, the sources said.

India and South Africa are also in the process to consult other countries that have supported the proposal. The over 120 WTO member nations who have supported the proposal want the talks to begin at the earliest possible dates, the sources added.

A Geneva-based trade official confirmed to ThePrint that the revised proposal announced by India and South Africa has “not been circulated yet” at the WTO for the members to consider.

Also read: Covid vaccine patents can be waived without hurting firms like Bharat Biotech. Here’s how


US support for TRIPS waiver is limited

Meanwhile, even before formal rounds of negotiations have begun at the WTO over the proposal, differences have already begun to emerge between the US, and India and South Africa, sources said.

According to the sources, the US has also made it clear to both India and South Africa that while the Joe Biden administration supports temporary TRIPS waiver, it will “only” be applicable to Covid vaccines and not other items such as medicines, ventilators and diagnostic kits, among others.

The sources said both India and South Africa have pushed the US to support the waiver on all items and not just vaccines.

During a Senate Finance Committee hearing on 12 May, US Trade Representative Katherine Tai clearly said the Biden administration is “focused right now on the intellectual property waiver at the WTO with respect to vaccines… but for my efforts at the moment, it is a focus on access to vaccines and the inequity, in terms of the access to vaccines”.

The USTR was responding to questions being posed by Senator Elizabeth Warren who said the US “should be backing” India and South Africa on waiving IP and patent rights also on testing and treatment kits and PPE, which is “critical”.

“We’re fighting over a waiver to rules — rules that never should have existed in the first place,” Warren said.

The sources added that the matter was also discussed during the USTR’s recent virtual meetings with Ebrahim Patel, South African Minister of Trade, Industry, and Competition and India’s Commerce and Industry Minister Piyush Goyal on 13 and 14 May, respectively.

On Tuesday, in a joint statement to the WTO, India and South Africa said the discussions, which are yet to begin in Geneva, “should be concluded as soon as possible given the very serious situation that we still face with COVID-19” and that they will show “necessary flexibility to ensure swift outcomes”.

Leena Menghaney, Global IP advisor, MSF (Access Campaign), told ThePrint: “It is crucial that this waiver not just apply to preventative vaccines, but it should also cover other medical products for Covid-19, including newer medicines like antivirals for people who fall ill from Covid-19 and diagnostics to help curb the spread, as originally proposed by India and South Africa seven months ago. Co-sponsors should maintain this redline in its negotiations.”

She added: “It is crucial as infections and death rise in the developing world, countries stop dragging their feet and expedite text-based negotiations. We cannot have a repetition of what happened during the height of the AIDS epidemic. Millions lost their lives in Africa, Latin America and Asia before WTO members recognised the right of countries to balance IP monopolies with the right to increases access to life saving drugs leading to the Doha Declaration on TRIPS and Public Health in 2001.”

Also read: Invoking Patents Act for production of Covid vaccines, drugs can have consequences: Govt to SC


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