Still tripping on TRIPS

In the run-up to the WTO TRIPS Council meeting on 22nd February, a letter backed by over 200 global, national and regional civil society groups to the WTO Director General, has stressed that for the WTO response to the pandemic to be credible, it must deliver a bold and meaningful outcome on the TRIPS waiver proposal and address concerns about the impact of intellectual property (IP) on timely and affordable access to medical products.

The letter re-states the main purpose of the waiver proposal which is the prevention, treatment and containment of COVID-19 and expanded and diversified supply, affordable prices, and more equitable access to the full range of medical products needed to achieve those goals.

The letter goes on to highlight the irony that some WTO members are supporting an IP waiver only for vaccines, even though domestically, these same members have emphasised the significance of testing and treatment in controlling COVID-19 infections. The letter, thus, makes the point that the IP waiver must extend to diagnostics and therapeutics as well as vaccines.

Even more worrisome is the news that some developed nations are suggesting a TRIPS waiver that is geographically limited. It is ironical that India, one of the main proponents of the TRIPS waiver, could well be left out. Experts also recommend that should this happen, India should be ready to exercise the compulsory licensing option, even though this is a legal rabbit hole that comes with its own complications.

Another school of thought proposes that India should start by sharing IP on its own Made in India vaccines and therapeutics for the duration of the pandemic. This ‘India waiver’ could then put moral pressure for a more equitable TRIPS waiver. However, is India Pharma Inc ready for this step? Are the companies investing in new research labs and vaccine manufacturing plants ready to sacrifice revenues on these products, at least as long as the pandemic lasts? Are we ready to do what we expect of others?

MSF has also issued yet another appeal that the TRIPS waiver be extended to cover not just vaccine jabs, but tests and medicines as well. Besides criticising the move to make it geographically confined, MSF also asked that the TRIPS waiver be extended for five years, as transfer of manufacturing technology is a lengthy process in the pharma sector.

Another important virtual workshop was slated for 28th February, with WTO, WHO, and WIPO on accessing and using information resources for the pandemic response. The Council for trade-related aspects of Intellectual Property rights has two meetings in March as well. So, we can expect more discussion and debate on this topic in the days ahead.

Pressure is mounting for a TRIPS waiver, even as world leaders acknowledge the worth of work that is IP-protected. For instance, on 23rd February, Dr Tedros Adhanom Ghebreyesus, Director-General, WHO, remarked, “We must now turn our attention to addressing the crucial question of how we turn vaccines into vaccinations – or how we get vaccines from ports to arms.” He reasoned that the flexibilities in the TRIPS agreement are there to be used in emergencies and asked, “If not now, then when?”

Mentioning how the WHO is trying to smoothen and speed up vaccine research and manufacturing, to “turn vaccines into vaccinations – or how we get vaccines from ports to arms,” he said the whole process “would be accelerated if manufacturers were willing to share their intellectual property and know-how” with the collaborative manufacturing hubs funded and created, like the mRNA Technology Transfer Hub in South Africa.

The worry is that low vaccine coverage in some countries increases the chances of new variants emerging and spreading throughout the world. WHO’s 22nd February statement on the Omicron subvariant BA.2 points out at a global level, the proportion of reported sequences designated BA.2 has been increasing relative to BA.1 in recent weeks, even though the global circulation of all variants is reportedly declining. As per an assessment of the WHO’s Technical Advisory Group on SARS-CoV-2 Virus Evolution (TAG-VE), the BA.2 differs from BA.1 in its genetic sequence, including some amino acid differences in the spike protein and other proteins. Studies have shown that BA.2 has a growth advantage over BA.1 and initial data suggest that BA.2 appears inherently more transmissible than BA.1, which currently remains the most common Omicron sublineage reported. However, this difference in transmissibility appears to be much smaller than, for example, the difference between BA.1 and Delta.

This data only goes to prove that even as we evolve our versions of a post-COVID normal life, we cannot let our guard down. At an individual level, this calls for masking and taking our shots. At a health policy level, governments must collaborate and work towards a more equitable access to medicines, vaccines and diagnostics to tame the COVID pandemic. If India, one of the main proponents of the TRIPS waiver, is left out, is it time for an ‘India waiver’ to show the way forward?

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