WTO: Members pursue convergence for an IP COVID-19 response

At a meeting of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) on 13-14 October 2021, WTO members noted encouraging exchanges at recent small group discussions and bilateral meetings which helped to identify points of convergence on how to provide a common intellectual property (IP) response to COVID-19. The chair of the TRIPS Council, Ambassador Dagfinn Sørli of Norway, announced he would continue to consult with members on how to move towards a consensus before the WTO’s 12th Ministerial Conference (MC12), to be held on 30 November — 3 December

Members appreciated the opportunities provided by recent small group and bilateral meetings to discuss issues related to the scope and implementation of the revised TRIPS waiver proposal first put forward by South Africa and India (IP/C/W/669/Rev.1) as well as the proposal for a draft General Council Declaration on the TRIPS Agreement and Public Health in the circumstances of a pandemic (IP/C/W/681) from the European Union, particularly with regards the use of current TRIPS compulsory licensing provisions.

Some delegations said that the results of those discussions were “encouraging” and helped to identify “important points of convergence”. Others said that further conversations that move the TRIPS Council towards evidence-based and pragmatic solutions should be the next step guiding their discussions at this critical juncture, with only seven weeks left before MC12.

Co-sponsors of the TRIPS waiver proposal reiterated that this initiative should be an integral part of any successful MC12 outcome and urged members to move beyond the binary approach between the two proposals on the table and engage constructively to secure consensus. Members also underlined the importance of aligning the facilitation process under Ambassador David Walker of New Zealand and the work by the TRIPS Council chair, so that a comprehensive package on trade and health leading to a multilateral and horizontal response to the COVID-19 pandemic can be achieved.

Some members noted the consensus-based nature of the WTO and the complexity of the issues involved, and flagged the risk of not achieving an outcome unless delegations are able to make some real compromises. A positive and meaningful outcome at MC12 on the IP response to the pandemic would not only send a powerful message of global solidarity, but would also be proof that the WTO has the ability to respond to a major global crisis, these members added.

Ambassador Sørli highlighted the collective willingness to continue discussions and explore possible common ground to come to a substantive agreement in time for MC12, but was also cautious, as the TRIPS Council is not yet in a position to agree on a concrete and positive conclusion at this point. Consideration of this item will be suspended to allow for extra time to continue discussions and consultations, and the TRIPS Council will be reconvened at a later date in order to conclude on a recommendation to the General Council, which is scheduled to meet on 22-23 November, one week before MC12.

Moving forward, the chair anticipated a further round of small group consultations on 26 October and encouraged members to keep engaging and step up their efforts to involve the broader membership sooner rather than later, given the short time available before MC12.

Members noted the WTO Secretariat’s updated compilation “COVID-19: Measures Regarding Trade-Related Intellectual Property Rights” that is available on the WTO website. This non-exhaustive list, compiled from official sources, represents an informal situation report and an attempt to provide transparency with respect to measures related to intellectual property rights taken in the COVID-19 context. The chair stressed that the list is updated continuously, even if the rate at which new measures are brought to the Secretariat’s attention is slowing down.

As requested by some delegations, the Secretariat provided recent data from different public sources on the number of voluntary license agreements regarding COVID-19 vaccine production, and the projected and observed volume of vaccine dose production under these agreements.

Women and IP

Continuing the theme of IP and innovation which has regularly featured on the TRIPS Council’s agenda since 2012, Australia, the European Union, Japan, Switzerland, Chinese Taipei, the United Kingdom, and the United States proposed  a discussion on the topic “Women and Intellectual Property” (IP/C/W/685), an initiative also co-sponsored by Chile and Canada.

The proposal highlights that women entrepreneurs, creators, and innovators are a growing segment of economic activity. Encouraging their participation in the IP system can open doors to financing and business opportunities, and has benefit for society overall. in knowledge sharing and fostering innovation. Enabling women to play an equal role in the economy is essential to sustained economic growth and achieving gender equality, and will help lift millions out of poverty. More can be done to support and empower women in participating in the IP ecosystem, proponents stressed.

In terms of numbers, women’s participation in the IP system varies according to the type of IP. For example, a study in the US found that women- and men -owned businesses showed only minimal gender differences in copyright holdings (4.3% of women employers and 4.5% of men-owned businesses held a copyright). In terms of patents, however, men-owned businesses are twice as likely as women-owned businesses to have either a granted patent (1.5% vs. 0.7%) or a pending patent application (0.9 vs. 0.4%).

The paper also indicates that there has been some progress in the rate of women’s participation in patenting. Between 1998 and 2017, the proportion of female inventors worldwide almost doubled from 6.8% to 12.7%. Furthermore, the proportion of patent applications that name a woman amongst the inventors rose from 12% to 21% over the same period.

Taking these numbers into account, members engaged in a discussion about specific programmes for assisting or promoting women’s participation in the IP system, and on measures that have proven useful for supporting women entrepreneurs in participating in the IP system. They also exchanged experiences on how to raise women entrepreneurs’ awareness of the benefits of IP for their business activity, on the main challenges and specific barriers found for women entrepreneurs, and on economic sectors where women are particularly active and could benefit from the IP system.

Other issues

On TRIPS non-violation and situation complaints (NVSCs) the majority of members expressed their support for extending the moratorium on this issue, but no consensus was reached.  NVSCs refer to whether and under what conditions members should be able to bring WTO dispute complaints where they consider that another member’s action, or a particular situation, has deprived them of an expected advantage under the TRIPS Agreement, even though no obligation under the Agreement has been violated.

The chair noted that, given the lack of substantive movement in delegations’ positions and the short time left before MC12, another extension of the moratorium could not be ruled out. Ambassador Sørli circulated a draft decision text showing what such a decision would look like, based on previous decisions that extended the non-violation moratorium. This agenda item also remains open while the chair consults with members. If members indicate they are in a position to reach consensus, the chair will reconvene the TRIPS Council at short notice, so that a recommendation can be made to the General Council, and through it, to the Ministerial Conference.

In relation to the status of acceptances of the protocol amending the TRIPS Agreement, the chair recalled that the current period for accepting the protocol runs until 31 December 2021. To date, 133 WTO members have accepted the amended TRIPS Agreement, with pending acceptance from 31 members. The chair encouraged those members to complete their domestic procedures and deposit their instrument of acceptance with the WTO Director-General as soon as possible.

In this context, the Council agreed to recommend that the General Council once again extend the period for acceptance for another two years – until 31 December 2023.

The WTO Secretariat announced a further annual workshop in March 2022 on the implementation of Article 66.2 of the TRIPS Agreement regarding incentives for technology transfer to LDCs. Article 66.2 of the TRIPS Agreement calls on developed countries to provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to LDCs in order to enable them to create a sound and viable technological base.

As on previous occasions, the workshop will comprise two days of sessions, and a reporting and review segment within the first TRIPS Council meeting of 2022. In preparation, the Secretariat circulated a survey questionnaire to LDC members and observers so they can indicate current areas of needs and priorities for technological development, projects that are relevant to these areas of technology transfer, and their general experience with projects reported under the Article 66.2 implementation and review process.

Next meetings

The chair announced his intention to reconvene the formal meeting on 5 November in the hope that the TRIPS Council will be in a position to take a decision on the three agenda items that remain suspended (NVSCs and the two proposals by South Africa/India and the European Union) as members continue to consider what recommendations to make to the Ministerial Conference.

In 2022, TRIPS Council meetings have been scheduled for the following dates: 9-10 March, 8-9 June and 12-13 October.

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