The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic

LSE Legal Studies Working Paper (2021, Forthcoming)

57 Pages Posted: 24 May 2021

See all articles by Siva Thambisetty

Siva Thambisetty

London School of Economics and Political Science

Aisling McMahon

National University of Ireland, Maynooth (NUI Maynooth) - Department of Law : Ireland ; National University of Ireland, Maynooth (Maynooth University) - Department of Law

Luke McDonagh

LSE Law

Hyo Yoon Kang

Kent Law School, University of Kent

Graham Dutfield

University of Leeds

Date Written: May 24, 2021

Abstract

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.

Keywords: patents, vaccines, trade secrets, COVID-19, TRIPS

Suggested Citation

Thambisetty, Siva and McMahon, Aisling and McDonagh, Luke and Kang, Hyo Yoon and Dutfield, Graham, The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic (May 24, 2021). LSE Legal Studies Working Paper (2021, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3851737 or http://dx.doi.org/10.2139/ssrn.3851737

Siva Thambisetty

London School of Economics and Political Science ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/sivaramjani-thambisetty.htm

Aisling McMahon

National University of Ireland, Maynooth (NUI Maynooth) - Department of Law : Ireland ( email )

Maynooth
Ireland

HOME PAGE: http://https://www.maynoothuniversity.ie/people/aisling-mcmahon

National University of Ireland, Maynooth (Maynooth University) - Department of Law ( email )

Maynooth, County Kildare
Ireland

Luke McDonagh (Contact Author)

LSE Law ( email )

United Kingdom

Hyo Yoon Kang

Kent Law School, University of Kent ( email )

Eliot College
Canterbury, Kent CT2 7NS
United Kingdom

HOME PAGE: http://hyoyoonkang.com

Graham Dutfield

University of Leeds ( email )

School of Law
Liberty Building
Leeds, LS2 9JT
United Kingdom
0113 343 1606 (Phone)

HOME PAGE: http://leeds.academia.edu/GrahamDutfield

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
929
Abstract Views
4,551
rank
30,389
PlumX Metrics