TRIPS waiver negotiations for Covid-19 medical products: India remains silent, has not put forward amendments

Though the Indian government has refused to publicly endorse the World Trade Organisation (WTO) Director-General’s suggestions and text on the TRIPS waiver for vaccines, negotiations show that the government has not put forth any amendment to the text. This has resulted in the WTO DG tabling the text and the negotiations beginning on the subject under the TRIPS Council chairperson Lansana Gberie, Ambassador of Sierra Leone.

This was highlighted in a letter to the Prime Minister Narendra Modi by Kerala MP TN Prathapan, who pointed out that these negotiations were important as it could help in securing a policy space that “goes beyond the existing flexibilities to remove the Intellectual Property barriers for Covid-19 health products”

In March 2022, it was revealed that India had reportedly agreed for a compromise with EU and the US for compulsory licensing of the vaccines, which was contrary to the country’s public stand for a waiver of intellectual property rights such as patents and trade secrets for manufacturing all Covid-19-related medical products.

The compromise agreement omits several proposals put forth by India and South Africa and limits the agreement to only vaccines. It covers only patents and does not address other intellectual property barriers, such as trade secrets and the compulsory licensing introduces unnecessary listing of patents for World Trade Organisation members.

According to people in the know about these meetings in Geneva, South Africa and India pointed out the issues concerning the text, but only South Africa said that it had sent new text for discussion regarding the agreement. Several developing and least-developed countries have inserted references to the Doha Public Health declaration as well as added language on issues of re-exporting. However, latest reports suggest that the Council chairperson Lansana Gberie has been stonewalling developing country members from proposing new language in the TRIPS waiver proposal.

Sources said that the US did not respond to discussions on issues raised and European Union negotiators attempted to defend the text, but had to agree to changes in the text in the face of opposition from several members.

The European Union has been consistently opposed to a waiver of the IP rights and initially the US administration had supported them, but now the Joe Biden administration has reversed its position. The EU has been, instead, pushing for limiting export restrictions and issuing licences that would allow specific manufacturers to avoid intellectual property rights without a complete waiver. The EU’s compromise agreement is a win only for pharmaceutical companies, who were lobbying for intellectual property protections over essential medicines.

In his letter to the PM, Prathapan underscored that because of India’s manufacturing capabilities in the therapeutics space, it was important for Indian negotiators to expand the scope of the TRIPS waiver decision, currently under negotiation to include therapeutics.

The Thrissur MP highlighted that he had noticed a slowing down of India’s response and approach after the change in the ‘bureaucratic head at the commerce ministry”. Earlier, India had proactively approached various countries to garner support, but after garnering support, the country has stepped back from playing a proactive role.

Earlier too the MP had written to the PM drawing his attention to the “compromised text which evolved out of the negotiations with the EU and US”. In his letter, he had pointed out that the compromise reached showed a complete surrender to the demands put forth by the EU and a total rejection of India’s demands.

“India has fallen in the trap of TRIPS. As a result of the special circumstances, which rose as a result of the Covid-19 pandemic, India and South Africa had put forward an equitable demand in front of WTO. But, instead of standing strong on the demands, Indian government has capitulated in front of extremely unjust demands of EU,” Prathapan had written in March. He had observed that the compulsory licensing clause included in the compromise text was even more stringent than the existing laws.

In April, more than 300 civil society organisations and health experts from across the world had written an open letter to Prime Minister Narendra Modi and South African President Cyril Ramaphosa to reject the ‘unequal and inadequate’ TRIPS waiver that was being circulated by the European Union.

In the open letter, it was highlighted that TRIPS waiver that was being circulated would inexplicably and unjustifiably erect more barriers to manufacturing life-saving medical technologies, including adding an impossible requirement to list every patent related to a vaccine.

National Herald sent questions to the commerce minister Piyush Goyal and the bureaucrats in charge of the TRIPS waiver negotiations, but there has been no response. This article will be updated if there is a response.