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TRIPS waiver in light of the COVID-19 pandemic in Philippines

The World Health Organization’s – Trade-Related Aspects of Intellectual Property (TRIPS) is a global multilateral agreement on intellectual property (IP).1 The TRIPS Waiver refers to the October 2020 proposal by India and South Africa for a brief waiver of intellectual property rights that protect inventions that are required to prevent, contain or treat COVID-19. They have proposed that these intellectual property rights should be suspended until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity. Public health advocates from all over the world have been supporting these efforts for a global waiver on intellectual property protections for COVID-19 vaccines.

Public health advocates in the Philippines claim that the waiver would allow improved access to necessary patented inventions required to treat the disease. Further, they state that these intellectual property waivers are also likely to encourage the creation of essential clinical devices and also promote greater access to vaccines across the nation. The waiver will cover commitments on, inter alia, copyright and related rights and patents. If passed, it is likely that the TRIPS Waiver will be in force for approximately three years.

The Coalition for People’s Right to Health (“CPRH”), a vocal supporter of the TRIPS Waiver, issued a statement on June 2, 2021 that the TRIPS Waiver is “an attempt to put people over patents and improve vaccine equity on a global scale”.2

Current situation with regards to vaccines in the Philippines

Philippines is currently in the midst of a nationwide vaccine drive. It has approved and procured supplies of vaccines manufactured by Pfizer-BioNTech, Oxford-AstraZeneca, CoronaVac (Sinovac), and Johnson & Johnson for public use, and is currently ramping up its vaccination efforts. It has also approved five other vaccines for use, including Sputnik V, Bharat Biotech, and Sinopharm (Beijing).3

According to Bloomberg.com, “[the] vaccination roll out [in the Philippines was] … picking up with 1.26 million shots administered in the first five days of July compared with 5.46 million doses for the entire month of June4 However, as of 23rd September 2021, only 17.3% of its population had been fully vaccinated.5 This is still well behind the global vaccination rate of 32.3% as reported by Our World in Data as of 23rd September 2021.6 It may be the case that this is due to a shortage of supply of vaccines in the Philippines, which has relied on donations and direct purchase to obtain vaccines.7

Dr. Julie Caguiat, representative of the Citizens Urgent Response to End COVID-19 (“CURE Covid”) claimed that in poor countries such as the Philippines, the TRIPS Waiver is more needed than ever in order to increase the vaccine supply without burying the countries in debt during a time of public emergency. Further, Dr. Joshua San Pedro, co-convenor of CPRH, added that while Philippines might have the capacity to create immunizations, diagnostics, and drugs, it does not have the licenses or protected innovation rights for certain technologies. In that vein, the TRIPS Waiver would be highly useful in the Philippines. Another representative of the CPRH has also stated that “[If there’s a] waiver, states can demand that the knowledge is shared without having to seek permission nor compensate the innovator.”8 In particular, the waiver would allow the technical knowledge disclosed under the patents for the vaccines to be readily available for use without having to compensate the patent proprietor. Therefore, there would be an elimination of the monopoly of the vaccines by the patent proprietor.

Further, since patents are generally issued for a term of twenty (20) years from the date of filing, patentees can withhold access to COVID technologies if they enforce their proprietary rights under their patents unless alternative arrangements have been made by governments such as through compulsory licensing.9 Under the compulsory licensing regime, the patent proprietor will maintain ownership rights over the patent. However, the government authority will grant users of the patented technology a compulsory license under which the patentee will be paid for the mandatory creation of drugs for public use.10 However, the compulsory licensing option nonetheless poses a financial burden on the governments of developing countries, such as the Philippines, as they would still have to pay the license fees to the patent proprietors, albeit at a reduced cost. Therefore, it appears that the proposed TRIPS waiver, which will remove the costs of the patent altogether, remains the only feasible option for these developing countries.

It still remains to be seen as to whether there can be global agreement to the TRIPS Waiver. To date, it appears that the only global superpower that supports the waiver is the United States of America.11 Most of the countries in the European Union have yet to lend their support to the same.12

Notes and References:
[1] https://www.wto.org/english/tratop_e/trips_e/trips_e.htm
[2] https://www.facebook.com/cprhPH/posts/1987294524758427
[3] https://covid19.trackvaccines.org/country/philippines/
[4] https://www.bnnbloomberg.ca/philippines-expects-30-million-vaccines-after-some-cities-ran-out-1.1626047
[5] https://ourworldindata.org/covid-vaccinations?country=OWID_WRL
[6] https://ourworldindata.org/covid-vaccinations?country=OWID_WRL
[7] https://www.ipwatchdog.com/2021/04/18/countries-like-philippines-unable-utilize-ip-flexibilities-covid-19/id=132310/
[8] https://www.philstar.com/headlines/2021/06/07/2103761/what-trips-waiver-and-what-does-it-have-do-covid-19-pandemic
[9] https://www.chanrobles.com/interpartesproceedingsrule6.htm#.YO-fzpgzZhF
[10] https://www.wipo.int/scp/en/exceptions/replies/philippines.html#Q9
[11] https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver
[12] https://www.philstar.com/headlines/2021/06/07/2103761/what-trips-waiver-and-what-does-it-have-do-covid-19-pandemic