As we previously reported, some members of the World Trade Organization (WTO), including India and South Africa, had called for a waiver of intellectual property enforcement on COVID-19 pandemic-related diagnostic kits, vaccines, medicines, personal protective equipment, and ventilators under The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). At that time, the Biden-Harris administration expressed its support for temporarily waiving intellectual property protections under TRIPS for COVID-19 vaccines, while making no mention of diagnostic kits, medicines, personal protective equipment, or ventilators.

Now, in its Ministerial Decision of June 17, 2022, the WTO has authorized eligible members, which include all developing country members, to use the subject matter of patents 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. Although the authorization is valid for five years, the WTO may extend the authorization in consideration of “the exceptional circumstances of the COVID-19 pandemic.”

Eligible members may also permit the products manufactured under the authorization to be exported to other eligible members. However, eligible members must take all reasonable efforts to prevent the re-exportation of the products manufactured under the authorization of the Ministerial Decision and imported into their jurisdictions.

The present decision does not provide a waiver for COVID-19 diagnostics and therapeutics. Instead, it contemplates that the WTO will re-visit that question within six months.

Proponents of the original proposal were unsatisfied with the decision. Indian commerce minister Piyush Goyal noted that “vaccines have already lost relevance. Two years [WTO] spent without giving a solution and it is too late—not even a situation where you can say better late than never. It is just too late.” Alan Beattie, world trade editor of the Financial Times, wrote that “[t]he TRIPS provisions have been watered down to almost homeopathic levels from the original proposal.”

At the same time, pharmaceutical industry organizations expressed deep disappointment with the WTO’s decision. The International Federation of Pharmaceutical Manufacturers & Associations, for example, believes that the decision “sends the wrong message to those carrying out research and development and innovating,” and that “[i]t incorrectly points to intellectual property (IP) as a barrier to the pandemic response rather than an enabler bringing healthcare solutions, safely and quickly to patients.”

Given the ever-evolving state of COVID and its effects on the world at large, only time will tell whether the present decision will have any meaningful impact on the challenges to come.