On October 2, 2020, India and South Africa negotiated with the World Trade Organization (WTO) to renounce any IP rights relating to COVID-19 drugs, vaccines and other related technologies for a restricted period. India and South Africa had suggested that the proposal should be recommended as early as possible to the General Council but the developed countries questioned its relevance and usefulness. As specified in the proposal, the waiver would last for as many years as agreed from the decision of the General Council and would remain intact until widespread vaccination is globally available and fair proportion of the world population has developed immunity towards COVID-19.

In support, South Africa also urged the TRIPS Council that all WTO members should work together to ensure that IP rights do not create barriers to the timely access to affordable medical products indispensable to combat Covid-19. India asserted that, with the development of new diagnostics, vaccines and related technologies for Covid-19, there could be tendencies of arousal of remarkable issues about availability of these developments. Besides, issues regarding making availability of these technologies and developments in sufficient quantities and at economical prices to meet global demand is something which can’t be discarded. Besides, the possibility of concerns regarding critical shortages in medical products can put at grave risk, patients suffering from other communicable and non-communicable diseases. The World Health Organisation (WHO) has supported India and South Africa’s move. In fact, the WHO is in support to ease international & intellectual property agreements on Covid-19 vaccines, treatments & tests in order to make the tools available to all who need them at an affordable cost.

 At the same time, International public health advocacy groups are backing India and South Africa’s joint proposal to the WTO to waive off certain provisions of the Trade Related Intellectual Property Rights (TRIPS) for Covid-19 therapeutics, including vaccines. The US, European Union, the UK and Switzerland, and other developed countries have not supported India and South Africa’s proposal. On the other hand, several developing countries, including China, Pakistan, have backed the proposal.

The US has been trying to push India to tighten its IPR regime. The US and the EU have backed India’s proposal on grounds of provision of Section 3(d) of India’s Intellectual property legislation which allows the Indian Patents Controller to deny patents on entities that are not significantly different from their older versions. This prevents pharmaceutical majors from getting fresh patents on medicines with expired patents by making just cosmetic changes in its formation. The US, at the WTO TRIPS council meeting, said that, intellectual property protections needed to be in place to support new research and innovation. According to the US, there is supposed to be no access to the drugs that have not been developed. There should be support in innovation and its essential. The US disassociated from the patent pool call and was in favour of patents for vaccines and medicines and critical role that intellectual property plays.

There is one issue jeopardizing over the Covid-19 pandemic now. If we do not address the intellectual property rights issues in this pandemic, we probably would end up seeing the repetition of AIDS tragedy that occurred in USA. People in US have died for 10 years as patented AIDS medicine was priced at between 10,000 to 15,000 dollars for a year’s supply.  Finally, it was Indian patent laws that, till 2004, did not allow patenting of such medicines, helping people to get AIDS medicine at less than a dollar a day. Today, 80% of the AIDS medicines in the world come from India. Hence, it is unlikely that the vaccines for COVID-19 will provide lifetime immunity. Unlike AIDS, where patient numbers were smaller, but COVID-19 is a visible threat for anyone. Any attempt to hold people and governments to ransom on COVID-19 vaccines or medicines, could see the collapse of the entire patent assembly of TRIPS that big pharma has built.

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