While the TRIPS waiver talks about a plethora of mechanisms for its implementation, amending relevant Indian laws such as the Patents Act, 1970, will give a robust foundation to the waiver.
Prabhash Ranjan, Professor and Vice Dean, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
The recently concluded 12th ministerial meeting of the World Trade Organization (WTO) saw the adoption of a decision that waives certain provisions of the Trade-Related Aspects of Intellectual Property Rights agreement (2022 TRIPS waiver) to expedite the production and supply of Covid-19 vaccines.
This waiver — far from the one India and South Africa proposed — is restricted to Covid-19 vaccines and the underlying technology but does not cover diagnostics and therapeutics. Furthermore, it applies only to patents, not other intellectual property (IP) rights.
Effectively, the decision waives the obligation imposed by Article 31(f) of the TRIPS agreement, which requires countries to ensure that products produced under a compulsory licence (CL) are predominantly for the domestic market.
Thus, eligible members, ie, all developing countries barring China, are now free to export Covid-19 vaccines to any developing country by producing them without the patent holder’s authorisation, such as by issuing a CL (unauthorised use).
But bizarrely, the developed countries that have been at the forefront of developing and manufacturing Covid-19 vaccines cannot export these vaccines to developing countries under this waiver.
Notwithstanding the shallowness of the TRIPS waiver, the ball is now in the court of the developing countries, especially the original propagators of the waiver, to use the decision by incorporating it within their respective legal regimes.
Specifically speaking about India, while the TRIPS waiver talks about a plethora of mechanisms for its implementation (such as issuing an executive order), amending relevant Indian laws such as the Patents Act, 1970, will give a robust foundation to the waiver.
There is precedence for this. Parliament inserted Section 92A (which prescribes the issuance of CL for exporting patented pharmaceutical products to countries with insufficient or no manufacturing capacity) within the Patents Act in 2005 to implement the 2003 TRIPS waiver.
Published in: The Hindustan Times
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