To Waive or not to Waive: International Patent Protection and the Covid-19 Pandemic

Abstract

In 2020, South Africa and India submitted a landmark proposal to the World Trade Organization (WTO) to allow all countries the legal right under international trade rules to choose not to grant or enforce patents and other intellectual property (IP) related to COVID-19 drugs, vaccines, diagnostics and other technologies and materials for the duration of the pandemic. Since then, the proposal for an IP waiver has gained support from 100 WTO members. However, a small number have continued to oppose implementing an IP waiver, maintaining that the current flexibilities under the Agreement on Trade-Related Intellectual Property Rights (TRIPS) provide a sufficient remedy. The TRIPS flexibility most recommended by waiver opponents is the Compulsory Licensing mechanism which allows government the authority to grant permission to itself or domestic producers to make a patented product without the patent owners’ consent. This article conducts a comparative analysis of the potential IP waiver and the compulsory licensing mechanism’s functioning in relation to facilitating increased production of Covid-19 vaccines by generic pharmaceutical manufacturers. Covid-19 vaccine access, international intellectual property regime, TRIPS agreement, access to medicine, intellectual property waiver, compulsory licensing