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MSF responds to potential compromise to ‘TRIPS Waiver’

Compromise neglects COVID-19 treatments and diagnostics and fails to address Intellectual Property (IP) barriers beyond patents, but there's still time to get it right

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The European Union (EU), India, South Africa and the US are working on a possible compromise to address Intellectual Property (IP) barriers on COVID-19 medical products. Médecins Sans Frontières/Doctors Without Borders (MSF) acknowledges the efforts towards a final resolution, but notes that the text leaked recently is far from an IP “waiver” for pandemic medical tools, according to a statement by MSF.

MSF urges all World Trade Organization (WTO) members to be aware of the limitations of the leaked text. WTO members should work together to ensure that any agreement tackles the current barriers to accessing all COVID-19 medical tools, including treatments and diagnostics, and addresses patents and non-patent barriers effectively, said the statement.

According to MSF’s initial analysis, key limitations of the leaked text include covering only vaccines, is geographically limited, and covers only patents and does not address other IP barriers, such as trade secrets, which may cover critical information needed to facilitate manufacturing, the statement further said.

Regarding compulsory licensing for patents on COVID-19 vaccines, the leaked text introduces unnecessary reporting requirements for WTO members that could undermine the mechanism’s effectiveness, it added.

It further stated that the leaked text leaves the door open for possible inclusion of treatments and diagnostics at a later stage. However, delaying the decision on treatments is unacceptable, as many people will have no access to generic antivirals, and countries are paying high prices for access to life-saving treatments like baricitinib due to patent monopolies that block more affordable generic versions.

The leaked text also fails to cover all countries. It limits “eligible members” to developing countries and only those who exported less than 10 per cent of the world’s COVID-19 vaccine exports in 2021, effectively excluding Brazil and China from being able to use the “waiver.” The proposed compromise would require authorisation by governments on a product-by-product basis, which was one of the shortcomings of the existing mechanism in a pandemic context and makes its use cumbersome. There is also a new obligation to identify all patents covered by the authorisation, something not required today under WTO trade rules, according to the statement.

Dimitri Eynikel, Policy Adviser, EU, MSF Access Campaign, said in the statement, “While it is good to see the groundwork for a potential compromise on addressing COVID-19 IP barriers, all WTO members should remain vigilant to the fact that this leaked text contains considerable limitations, and needs to be urgently improved.

He added, “It is incredibly concerning that the leaked text currently only covers vaccines, but neither treatments nor diagnostics. Excluding treatments and diagnostics is a critical weakness, especially as access to COVID-19 treatments remains a significant problem in many LMICs, particularly in Latin America, in part, because of patent barriers and restrictive licensing deals controlled by pharma corporations. Excluding countries with significant manufacturing and supply capacity like Brazil is highly problematic as it arbitrarily blocks potential critical avenues to increase access to COVID-19 medical tools for LMICs.”

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