WTO’s TRIPS Council met informally last week on June 19, 2020 to consider the implications of the pandemic for council related work and its future agenda, IP measures taken in the context of COVID19 and continuing positions on non-violation and situation complaints.
It is interesting to take note of the range of IP measures taken in the context of the pandemic. Delegations were invited to share information and best practices on intellectual property measures taken in the context of the COVID-19 pandemic.
The WTO secretariat has drawn up a non-exhaustive of IP measures compiled from official sources. “It represents an informal situation report and an attempt to provide transparency with respect to measures related to intellectual property rights (IPRs) taken in the context of the COVID-19 crisis,” WTO says on its website.
It also points to WIPO’s COVID19 Policy Tracker for operational measures taken by national and regional IP offices in response to COVID-19.
The TRIPS council is expected to meet in July this year, according to a source at WTO. (Read Third World Network’s update on the discussions and resistance showed by some members on having a TRIPS council meeting before October this year.)
Some key measures by countries as discussed in WTO’s list.
The National Institute of Industrial Property (INPI, in Portuguese) published patent landscapes on patents or patent applications filed at INPI on diagnostic methods for the new coronavirus and other respiratory viruses, ventilators and Remdesivir.
As a way to collaborate in the effort to contain the expansion COVID-19, INAPI prepared special editions of its reports on public domain technologies focused on elements for personal protection designed to mitigate contagion.
An amendment to the German Act on the Prevention and Control of Infectious Diseases in Humans grants the Parliament the competence to determine the existence of an ‘epidemic situation of national significance’. For grounds of public interest or national security, the Federal Ministry for Health is authorized to order the competent authority to allow the use of patent-protected inventions to ensure the supply of various health technologies, including medicines, diagnostics and personal protection equipment.
In connection with the COVID19 pandemic, the Hungarian Government declared special legal order (State of Danger). During this period, the Government may adopt decrees by means of which it may, as provided for by a cardinal Act, suspend the application of certain Acts, derogate from the provisions of Acts and take other extraordinary measures.
The Government Decree 212/2020 (16 May) on public health compulsory licences for exploitation within Hungary, based on Art 31 of the TRIPS Agreement, creates a public health compulsory licence for exploitation within Hungary.
With a view to satisfying the needs arising within Hungary in connection with the health crisis, the Hungarian Intellectual Property Office (hereinafter “HIPO”) shall issue a public health compulsory licence. Read more on the conditions and stipulations here.
The India Controller General of Patents, Designs & Trade Marks has extended certain deadlines for patent, design and trademark matters.
I found an earlier significant statement by India on trade-measures related to COVID19
“.. we are committed to the G20 leaders’ statement that emergency measures taken in the wake of the pandemic should be “targeted, proportionate, transparent, and temporary”. Members are free to reduce customs duties on imports of certain medical or agricultural products to zero, on a voluntary basis, if it serves their health and food security objectives. However, the narrative-push by some WTO Members to seek permanent tariff liberalization on a range of products in response to a temporary crisis, appears to be a thinly veiled bid to use the crisis as an opportunity to gain market access for their exporters.”
The European Committee for Standardization and the European Committee for Electrotechnical Standardization, in collaboration with their members, agreed to make freely available certain copyrighted European standards for certain medical devices and personal protective equipment.
Some significant references in the EU statement in May 2020:
“….On health, the COVID-19 crisis has shown the importance of affordable access globally to healthcare products on a predictable and lasting basis, to which the WTO could contribute. The EU is therefore exploring how efforts could be deployed to facilitate trade, eliminate tariffs on medicines and protective equipment as well as address non-tariff restrictive measures, including on the export side.
Thirdly, the WTO can also encourage Members to work collaboratively to develop, test, and scale-up production of safe, effective, quality diagnostics, medicines and vaccines for the COVID-19 response, including through existing mechanisms for voluntary pooling of rights and licensing”
On 18 March 2020, Israel’s Minister of Health issued a permit allowing the government to import generic versions of lopinavir/ritonavir from India for the purpose of treating COVID-19 patients. (Unofficial English translation by KEI)
The Korean Intellectual Property Office has made available patent information on technology relating to the diagnosis and treatment of COVID-19, including patent analysis and trend reports.
The United States Patent and Trademark Office launched the COVID-19 Prioritized Patent Examination Pilot Program under which it will grant requests for prioritized patent examination for applicants which qualify for small and micro-entity status with respect to applications that cover a product or process that is subject to U.S. Food and Drug Administration (FDA) approval for use in the prevention and/or treatment of COVID-19.
Other matters at the meeting:
Knowledge Ecology International has blogged about South Africa’s interventions on COVID-19, TRIPS flexibilities, and domestic manufacturing capacity.
Apart from highlighting the importance of using TRIPS flexibilities in meeting the demands of the COVID19 pandemic, South Africa also underscored challenges for domestic manufacturing capacities.
Domestic Manufacturing Capacity
In this context access to Article 31bis of the TRIPS Agreement many not be effective in securing access to much needed pharmaceuticals, medical devices, diagnostics and therapeutic technologies to address the health impact of COVID-19. In this context, IP rights may constitute a barrier to the diagnosis, treatment and overall management of COVID-19 and co-morbidities. Multilateral cooperation is going to be critical in ensuring an effective response to the pandemic and may require drawing from both current and past experiences in finding an innovative solution to this unprecedented crisis. In anticipation that intellectual property may pose a barrier to access several ad-hoc unilateral initiatives have emerged. However, these initiatives, while commendable, are simply inadequate to address the IP barriers. Holders of protected technologies that are crucial in the battle against COVID-19 may not participate in such initiatives and voluntarily surrender their IP. Licenses granted under such schemes tend to limit the number of countries that can be supplied by the licensee, upper-middle income countries are often excluded. The role of governments acting in the public interest will be important to address possible obstacles to access to medicines and medical technology that could be posed by IPRs. Madam Chair, this delegation together with others also highlighted the nexus between intellectual property rights and public interest.
WTO has put together a webpage to track the implications of the pandemic for world trade
On Article 31bis, a helpful blog from Medicines Law and Policy: Never say never – Why the High Income Countries that opted-out from the Art. 31bis WTO TRIPS system must urgently reconsider their decision in the face of the Covid-19 pandemic.
See also a policy brief from the South Centre on Intellectual Property, Innovation and Access to Health Products for COVID-19: A Review of Measures Taken by Different Countries, which includes discussion on IP and competition law related provisions that enable access to health products.
This post was updated later to includes link from a story from Third World Network and the South Centre.
Here is an earlier story on Non-Violations Complaints, I had filed a few years ago.