India risks being left out of TRIPS waiver

Published
23rd Feb, 2022

Context

India runs the risk of being excluded from a proposal it co-authored at WTO negotiations, in 2020, to “temporarily waive” IPR held, by primarily Western countries, on vaccines, therapeutics and diagnostics for covid-19.

Background

When the Covid-19 pandemic pounded the globe, India, with South Africa, piloted a proposal to waive key provisions of the TRIPS agreement on Covid-19 vaccines, drugs, therapeutics, and related technologies.

Idea Behind proposal:

The core idea behind the proposal is that intellectual property (IP) rights such as patents should not become a barrier in scaling up the production of medical products like vaccines, diagnostics and therapeutics essential to combat Covid-19.

TRIPS — Trade-Related Aspects of Intellectual Property Rights:

The TRIPS Agreement, which came into effect in 1995, is to date the most comprehensive multilateral agreement on intellectual property (IP).
It plays a central role in facilitating trade in knowledge and creativity, in resolving trade disputes over IP, and in assuring WTO members the latitude to achieve their domestic policy objectives.
It frames the IP system in terms of innovation, technology transfer and public welfare.
The Agreement is a legal recognition of the significance of links between IP and trade and the need for a balanced IP system.
The three main features of the Agreement are:
- Standards: In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member.
- Enforcement: The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights.
- Dispute settlement: The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.
TRIPS And Indian Patent laws:
The WTO adopted the Doha Declaration in 2001, which clarified that in the event of a public health emergency, governments could compel companies to license their patents to manufacturers even if they did not think the offered price was acceptable.

This provision, commonly known as "compulsory licensing," was already included in the TRIPS Agreement and the Doha Declaration only clarified its use.

According to Section 92 of the Indian Patents Act of 1970, the central government has the power to issue compulsory licenses at any time in the case of a national emergency or extreme urgency.

Why India’s economic diplomacy failed?

During the entire pandemic, India rarely made use of the existing flexibilities under the Indian Patent Act, such as compulsory licences (CL), which are consistent with the TRIPS agreement, to increase the supply of Covid-19 medical products despite being nudged by the judiciary to do so.
The central government, during peak of second wave, filed an affidavit in the Supreme Court stating that the main constraint in boosting the production of key drugs is the unavailability of raw materials, not IP-related legal hurdles.
India did not proactively develop a national strategy to implement the TRIPS waiver as and when it is adopted.
India, as a country leading the TRIPS waiver battle internationally, should have developed a draft model law enunciating how it would implement the waiver.
This would have not only fortified India’s position internationally but would have also acted as a pressure point to influence the negotiations.
The government failed to get the Indian pharmaceutical industry on board.
India is one of the few countries that have successfully developed a fully indigenous Covid-19 vaccine, Covaxin.
While technology transfer agreements for Covaxin have been inked with domestic companies, making the vaccine technology available to anyone interested globally, at a minimal price, would have exhibited India’s resolve to walk the talk on the TRIPS waiver.