JTIP Blog

TRIPS Waiver and COVID-19 Policy

As COVID continues to impact nations across the world, policymakers are left trying to facilitate ways to better deal with a global event of this magnitude. Public health concerns forced leaders to re-think current laws and agreements. Intellectual property law is not an outlier. To mitigate some of the effects of the pandemic, some countries have tried to waive certain intellectual property rights for knowledge sharing. In October of 2020, for instance, India and South Africa proposed a TRIPS waiver related to the COVID-19 pandemic, which sparked a global debate around balancing intellectual property rights and managing a global health crisis. 

Countries that are members of the WTO have all signed agreements related to trade and intellectual property protection–this agreement is the TRIPS agreement. Governments that have agreed to this TRIPS agreement can bring waivers, such as the one proposed now, in times when they believe the public good may be better served without certain IP protections. The idea is that waiving certain obligations pertaining to either patents related to COVID-19 related inventions or discoveries would allow greater access to COVID-19 vaccines and drugs.  India and South Africa’s proposal was amended in May of 2021, with the support of 60 low-income countries. The main amendment was the addition of a clause that limited the waiver to cover a period of three years. The waiver would cover “health products and technologies, including diagnostics, therapeutics, vaccines, medical devices, personal protective equipment, their materials or components, and their methods and means of manufacture for the prevention, treatment, or containment of COVID-19.” 

Support for this waiver has expanded to more countries, including China, but notably it did not receive initial backing from the U.S. The U.S. has historically been opposed to such intellectual property waivers. However, on May 5, 2021, the Biden Administration released a statement in support for a TRIPS waiver for COVID-19 vaccines, specifically. It stated, “The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.” 

More than a year after India and South Africa’s initial TRIPS proposal, discussions continue among WTO nations, but no agreement has been reached. Countries like Germany, Switzerland, Norway, and the UK are standing firm in their objections. Though as of January 2022, roughly 10 billion doses of the COVID-19 vaccine have been administered, Our World in Data reports that only 10% of people in low-income countries have received at least one dose. 

Would Climate Change Fit Under a TRIPS Waiver?

If a TRIPS waiver cannot be approved for something as global and life-threatening as the COVID-19 pandemic, can a TRIPS waiver ever be approved for something else? In the face of impending climate change, for example, could a TRIPS waiver be effective in the sharing and access of climate technologies, much as a COVID-19 waiver would be effective in sharing technologies related to the pandemic? 

Simply put, yes. Climate change could be similarly categorized as a type of disaster that could be noted in a TRIPS waiver proposal to temporarily waive intellectual property rights, specifically patent protections.  However, at this point, a TRIPS waiver for climate change has not been formally proposed. 

Possibility of Extended TRIPS Waiver to Combat Climate Change

Just as with the COVID-19 pandemic, low-income countries are likely to suffer the most from climate change. Like with COVID-19 relief, knowledge sharing of climate change technologies may be needed and desired. A TRIPS waiver could promote “technology transfer” related to climate change, which in turn could promote access to climate technologies, especially in low-income countries. This sharing of knowledge would ideally lead to developments in climate technology and further access around the world.  

However, opponents to TRIPS waivers state that without intellectual property protections, inventors are not sufficiently incentivized to continue to create new technologies. It is argued that stripping away financial incentives would hinder the development of climate technology and that the TRIPS agreement is in place primarily to guard those property rights of patent, copyright, and trademark owners. To secure a TRIPS waiver for climate change technologies, approval would be needed from many different countries.  Low-income countries would potentially be more willing to sign on to this type of waiver, as evidenced by their support of the COVID-19 waiver. As has been the case with other proposed waivers, it will potentially be difficult to influence higher-income countries like the United States. Yet, since the Biden administration has supported a limited, temporary COVID-19 waiver, perhaps this administration or future administrations would support similar proposals relating to climate change. 

Other high-income countries would need to sign on for the waiver to be effective and lead to knowledge sharing. As James Bacchus emphasizes in his report for a WTO climate waiver, being able to secure such a waiver will fall on the political persuasion of countries who hold the most power.  It will take the persuasion of these countries in convincing the WTO that this type of waiver is necessary to battle the potential destruction of climate change. Drafting a climate change waiver and waiving certain intellectual property rights temporarily to create knowledge sharing of climate technologies would be the easy part of this venture.  Getting the necessary support from countries who have the most power would be much harder. 

Alternate Routes of Knowledge Sharing

A TRIPS waiver could allow access to intellectual property, specifically patents, within a timeframe normally unachievable under the current intellectual property regime. But is there another way to increase knowledge sharing, without relying on a TRIPS waiver being passed? 

One alternative may be patent pools. The creation of patent pools has improved access to public health when intellectual property laws may have previously limited knowledge sharing. Patent pools are agreements between patent owners and/or third parties, to license a patent for others to use, create, or make. They work by allowing patent holders to license their patents to a shared pool.  Then, manufacturers, developers, and other inventors that are part of this pool can use the rights to make the patented invention at lower costs. The patent holder gets royalties from what is sold, therefore allowing them to still benefit from their work. The Medicines Patent Pool, for example, operates to increase access to HIV treatments. It continues to create lower-cost drugs for those living with HIV/AIDS. 

Applying the same idea, a patent pool could be created for climate change related technologies. The benefit of a patent pool is that it would not need broad approval from countries in the WTO, like a TRIPS waiver would need.  A patent pool for climate change technologies would instead rely on the licensing of technology from patent holders themselves. Once the patent pool has patents that can be used, manufacturers can start to make and sell these inventions at lower costs, which would hopefully provide more access. The downside to a patent pool solution is that, though licensing patent holders would collect royalties, to make the pool work, all participants would need to agree on the licensing details. This would require that patent holders independently make the decision to share knowledge on their own and then agree with the other patent holders in the group. Without buy in from governments, the patent pool system relies on the goodwill and good faith of individual patent owners.      

Conclusion

Ultimately, it would likely be difficult to set in place a TRIPS waiver for climate change technologies, even though such a waiver can be highly effective in promoting knowledge sharing.  As a TRIPS waiver has not yet been available for COVID-19 related relief, trying to obtain buy in for a potential crisis that may be slower-paced than COVID-19, like climate change, would be challenging. However, without waiting for sign on from every country, effective knowledge sharing can still take place by adopting alternative plans like patent pools. Because patent owners would still receive royalties and be able to opt-in on their own accord, patent pools may be a particularly effective way to promote the sharing of climate change technologies.

Madeline Thompson is a second year law student at Northwestern Pritzker School of Law.