TRIPS Waiver & MC13 in Abu Dhabi
Healthcare &
Life Sciences Focus
Ahmad SalehPartner,Innovation, Patents & Industrial Property
Ammina RaoSenior Associate,Innovation, Patents & Industrial Property
Mariam FanousSenior Business Advisor,Innovation, Patents & Industrial Property
Availability of vaccines across the world is a critical issue that requires a balance of priorities at national and international levels. At a meeting of the Council for Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) on 6 July 2022, World Trade Organization (‘WTO’) members attempted to tackle this issue by the adoption of the Ministerial Decision on the TRIPS Agreement at the 12th Ministerial Conference (‘MC12’). The decision authorizes the “use of the subject matter of a patent required for the production and supply of Covid-19 vaccines without the consent of the right holder to the extent necessary to address the Covid-19 pandemic” (the ‘TRIPS Waiver’).
The value of vaccines to public health and the global economy was evident during the Covid-19 pandemic. The availability of vaccines protected populations, reduced the unimaginable burden on health systems, and evidently got the world moving again. Despite the revolutionary breakthrough in vaccine development, the pandemic also highlighted the vast health inequalities across the world. At the start of 2021, high-income countries had secured 51% of the total Covid-19 vaccines doses for the year (which only accounted for 14% of the total world population). This resulted in a significant shortage in supply of doses available for purchase by developing countries.[1] Oxfam International also reported that people living in G7 countries were 77 times more likely to be vaccinated compared with people living in impoverished countries.[2]
Due to this unequal landscape, many developing countries argued that suspending patent rights could improve distribution and access of vaccine supply whilst some pharmaceutical companies and high-income countries argued waiving patents would halt innovation and de-incentivize R&D. WTO responded with the heavily debated Trips Waiver. However, the measure has been criticized as being inadequate in addressing the vaccine access problem. Unlike chemical pharmaceuticals (most medicines), vaccines are large-molecule biological products requiring a great deal of information and know-how to manufacture (information that is not disclosed in patent publications).[3]
An extension of the TRIPS Waiver to cover diagnostics and therapeutics (tests and treatments) will likely be given consideration during the upcoming WTO’s 13th Ministerial Conference (‘MC13’) in Abu Dhabi in February 2024 (a continuation of discussions that have been ongoing between WTO members since MC12). Supporters of the extension to the waiver are hopeful that a favorable consensus is reached. However, some argue that access to therapeutics and diagnostics is beyond the scope of intellectual property and that broader factors (such as technology and know-how transfers, essential materials, and supply chains etc.) are more crucial.
The decisions made by WTO members in Abu Dhabi will be important, not only in relation to Covid-19 but future global emergencies and crises as they arise.
H.E. Dr Thani bin Ahmed Al Zeyoudi, Minister of State for Foreign Trade of the United Arab Emirates, has been elected as the Chairperson for MC13. Issues WTO members will be focusing on during MC13 are: WTO reform and in particular reform of the WTO's dispute settlement system; securing the entry into force of the Fisheries Subsidies Agreement and concluding the second wave of fisheries subsidies negotiations; advancing talks on agriculture; and delivering on the development agenda in order to maintain the belief and trust of developing countries in the WTO.
H.E. Dr Al Zeyoudi has commented on the objectives of MC13: “It has become clear that trade policy extends far beyond the scope of trade itself. It is about shaping our common future that takes into account the environment, global health and poverty. It is our collective responsibility to contribute to a predictable, rules-based and open trade and investment environment that creates prosperity for all. And this is precisely why success at MC13 is so imperative.”
With the recent COP28 conference in Dubai, and H.E. Dr Al Zeyoudi’s vision for MC13, it is clear that climate change is another important topic on the world agenda. WTO members at MC13 should consider whether action similar to the TRIPS Waiver should be taken with regards to green technology. As is the case with access to vaccines, developing countries are most vulnerable to the consequences of climate change and are not positioned to acquire, develop, or utilize green technology. Whilst more robust patent protection for green technology may bolster value or investment in this area of technology, it arguably does not facilitate the implementation of the technology fairly across the world, particularly in developing nations.[4]
Critics of the TRIPS Waiver have said the measure fell short because it failed to take account of other difficulties in vaccine access in the developing world, such as limited manufacturing capabilities and necessary infrastructure, difficult regulatory requirements, as well as the lack of health workers and the necessity for the vaccines to be refrigerated at very specific temperatures. These challenges will not be addressed by the extension to the Trips Waiver being considered by WTO members; active efforts must be made to address these challenges head-on.
During the Covid pandemic, the UAE and KSA sought to creatively bridge the access gap. For example, the UAE created a public-private partnership called “Hope Consortium” (a Covid-19 vaccine storage and delivery hub based in Abu Dhabi), which worked with international partners, including US companies UPS and FedEx Express, to expand the distribution range of the vaccine. The consortium delivered more than 210 million vaccine doses to over 60 countries in its first year of operation. The Dubai Vaccines Logistics Alliance combined the global reach of Emirates Airline with DP World’s worldwide network of ports and logistics operations, along with the infrastructure of Dubai Airports and International Humanitarian City (‘IHC’) to distribute vaccines worldwide. [5] The UAE was also the first country in the Arab world to begin manufacturing the Covid-19 vaccine at a purpose-built vaccine manufacturing facility to meet global demand.[6] Similarly, the KSA sought to actively assist Tunisia during the pandemic, sending 1 million vaccine doses in 2021.[7]
WTO seeks to incentivize trade and encourage technology transfer by strengthening global intellectual property protection. This protection can strike a balance by promote licensing of crucial and life-saving technology to developed countries and allowing companies to recoup their investment through royalties. The difficulty in this model arises when developing countries are not granted licensed technologies due to lack of resources, investment, or infrastructure.
Finding the right balance is crucial as we seek to find a suitable middle path. We can draw inspiration from successful creative collaborations, like those seen in the UAE and KSA during the pandemic. By working together, WTO members can empower developing nations with the necessary tools to build resilience against future pandemics and other global threats like the climate crisis. This support should prioritize infrastructure development and intellectual property access.
Keeping the above factors in mind regarding intellectual property rights and supply chain challenges, it is unlikely that waiving patent protection in a silo would improve accessibility to vaccines or green technology. Though most countries have compulsory licensing measures in place, sensible and practical national policies and international collaboration efforts should be prioritized. Mechanisms such as technology transfer, fair pricing, and international collaboration should be utilized effectively to enable a balance between innovation and accessibility. Facilitating preventative and adequate infrastructure in developing nations may very well be the most efficient form of assistance that developed nations can provide. M13 in Abu Dhabi will give WTO members another chance to consider a reasoned way forward with regards to issues raised during the pandemic, whilst also keeping in mind that the global climate crises is worsening, and it might be time to explore widening world-wide access to green technology.
[1] https://www.bmj.com/content/371/bmj.m4750
[2]https://www.oxfam.org/en/press-releases/more-million-covid-deaths-4-months-g7-leaders-failed-break-vaccine-monopolies#:~:text=For%20the%20month%20of%20May,countries%20were%2077x%20more%20likely
[3] Mark Eccleston-Turner, The Economic Theory of Patent Protection and Pandemic Influenza Vaccines: Do Patents Really Incentivize Innovation in the Field?, 42 Am. J.L. & Med. 572–597 (2016); M. Eccleston-Turner, Beyond patents: Scientific knowledge, and access to vaccine, 3 Ethics, Med. & Pub. Health 64 (2017).
[4] https://www.mcgill.ca/business-law/article/are-intellectual-property-incentives-ill-equipped-respond-global-climate-change-fight
[5] https://www.uae-embassy.org/sites/default/files/inline-files/UAE%20Embassy_Vaccine%20Distribution%201.26.pdf
[6] ibid
[7] https://www.reuters.com/world/middle-east/saudi-arabia-send-one-million-doses-vaccine-tunisia-2021-07-12/
For further information,please contact Ahmad Saleh and Ammina Rao.
Published in January 2024
