Can IPRs be part of the COVID-19 solution, rather than the problem?

As we embark on a New Year and new decade, with the coronavirus which causes COVID-19 still firmly shadowing our every move, it is also time for the debate on intellectual property rights (IPRs) to notch up even more.

South Africa and India have now found support from many more developing countries for the proposal at the World Trade Organisation (WTO) to waive patents and all forms of IPRs on COVID-19 related medical products. It is expected that informal meetings will continue in January and February, before the formal TRIPS Council session on March 10-11, 2021.

Meanwhile, the Office of the United States Trade Representative (USTR) has announced the schedule for the 2021 Special 301 Review. This is an annual review process to pinpoint countries that ‘deny adequate and effective protection’ of IPRs or ‘deny fair and market access to US persons who rely on IP protection.’

The review results in such countries being listed as Priority Foreign Countries and/or placed on a Watch List. India has consistently made it to this list.

On or about April 30, 2021, the USTR will publish the 2021 Special 301 Report within 30 days of the publication of the National Trade Estimate Report. The latter highlights foreign barriers to US exports, foreign direct investment from the US, and US electronic commerce and as is to be expected, this document is directly linked to and guides the US President’s Trade Policy Agenda.

The dialogue between governments has already started. In early December, the US Chamber of Commerce’s Global Innovation Policy Center (GIPC) and US-India Business Council, in partnership with the Federation of Indian Chambers of Commerce and Industry (FICCI), met at the 3rd annual IP Dialogue, to discuss ‘IP-led solutions to the Global Pandemic’, as per a statement.

The statement also quotes Patrick Kilbride, Senior Vice President, US Chamber’s Global Innovation Policy Center linking the “promising news on vaccines and treatments for coronavirus” as a “signal that the UN framework for intellectual property is working.”

Nisha Biswal, President of the US Chamber’s US-India Business Council too makes the point that “intellectual capital fuels the creative economy” and says that “an effective IPR regime is foundational to achieving the government’s goal of a $1 trillion digital economy” and also supports the success of Prime Minister Modi’s government’s flagship initiatives like Digital India, Make-in-India and others.

Biswal also comments that the IP Dialogue “is an opportunity for the US and Indian governments to come together to discuss an issue critical to our bilateral relationship.” Recommendations from the meeting are to be shared with both governments to deepen strategic cooperation on IP policy as per the press note.

For the other side which believes IPRs are not part of the solution but part of the problem, the next three months will be about creating more Twitterstorms like MSF did in December, to whip up support for the waiver of IPRs.

And in the midst of these meetings and consultations, a new US government will take office, when President-elect Joe Biden takes the oath on January 20.

So 2021 will be about finding a middle path so that “intellectual capital” sees the RoI in R&D to better these vaccines/medicines as well as identify the next infectious agents to trigger the next pandemic. It will need constructive criticism from patient groups and humanitarian organisations to continue to be part of the process of easing access to essential medical aid. And it will need governments to balance trade and ‘bilateral relationships’ with national needs.

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