After nearly 2 years since the Covid-19 outbreak and nearly 1 year since the first country proposes to waive Intellectual property rights for medical products and technologies that fight the Covid-19 virus, Australia has finally expressed its support over the TRIPS waiver for Covid-19 vaccines.
In September 2021, Trade Minister Dan Tehan has confirmed the information that Australia will express its support over a TRIPS waiver for the temporary suspension of intellectual property rights for Covid 19 vaccines.
On October 2, 2020, India and South Africa are the first countries to submit to the TRIPS Council a proposal for a temporary exemption from the obligations to protect IP rights for medical products and technologies that will help the citizen from across the world to battle Covid-19 pandemic.
This is due to the fact that at then, the Covid-19 pandemic was raging across the entire world, causing immeasurable damage to all countries, from trading to finance, to social health, etc.
On the other hand, we can see from the fact that the Covid-19 pandemic is still raging at the very moment and it won’t likely come to an end in 2022. This leaves the citizens and many governments from across the world wonder that if the TRIPS waiver for the Covid-19 vaccine has been passed from the beginning of the pandemic, would the pandemic have been over by now?
Nonetheless, the future of the entire world can’t be solved by asking “what if” questions. It needs determination and decisive actions that contribute to the overall victory of the fight.
That’s the core reason behind the support of Australia into the waiver of Covid-19 vaccines.
The TRIPS waiver for Covid-19 vaccines and related medical devices and technologies
The TRIPS waiver for Covid-19 vaccines and related medical devices and technologies has clearly stated that this exemption is only temporary, just until the world achieves herd immunity.
The obligations proposed to be waived include the provisions in Section 1 (Copyright and Related Rights), Section 4 (Industrial Designs), Section 5 (Patents), and Section 7 (Protection of Confidential Information) under part II and the obligations to enforce those sections falls under part III of the TRIPS Agreement.
Under this proposal, member countries of the TRIPS Agreement would be able to temporarily suspend IP rights protection globally for products related to Covid-19 including diagnostic kits, therapeutic drugs, vaccines, and medical equipment that is essential to put a halt to the spread of the Covid-19 pandemic or even stop it entirely. The IP rights applied in the proposal include Copyright and Related Rights, Industrial Designs, Patents, and Protection of Undisclosed Information.
With the protection of IP rights temporarily out, the countries with fewer resources on research and development can now be able to produce the vaccines themselves and distribute them to their nations, even create additional supplies to support other neighboring countries.
One of the most important impacts from this waiver will be the harmonization between the countries, lessening the difference between the rich and the poorer countries, create a condition where every country in the world has to work together, contributing to the globalization goal.
With Australia joining to become one of the countries that support the TRIPS waiver proposal, the future when all countries will have the rights and possibly promptly the infrastructure to mass produce all the vaccines and related equipment to fight the Covid-19 pandemic all over the world will come soon.
With Australia joining, at the date of October 2nd, 2021, one year from the anniversary of South Africa and India’s call or a TRIPS waiver for Covid-19 vaccine from October 2nd, 2020, there have been 105 countries that support the TRIPS waiver.
Nonetheless, a consensus of all 164 World Trade Organization (WTO) members must be reached in order to pass the waiver from certain provisions of the TRIPS Agreement for the Prevention, Containment, and Treatment of COVID-19.
Simon Potter, a principal at Spruson & Ferguson in Sydney discussed the joining of Australia to the TRIPS waiver for Covid-19 vaccines: “As a case in point, Australia’s own issues in securing adequate Covid-19 vaccine supply have highlighted that current global production and licensing arrangements are inadequate, and their effects on low- and middle-income countries are of course far more pronounced.”
With Australia declared its support of the TRIPS waiver, Potter sees this as positive progress that should contribute to generating favorable global outcomes in the fight against Covid-19.
This is extremely glad to hear because previously, officials in Australia have been non-committal in terms of the country’s support of the waiver. The recent change of heart regarding this decision probably derives from the fact that this country has encountered a sharp rise in the number of Covid-19 cases recently and the Government of Australia is being forced to make some necessary changes from the normal people.
Simon Potter further adds to the possible reasons behind this decision: “This most likely reflects concern over a number of possible obstacles to achieving the intended outcomes of the Covid-19 IP rights suspension along with some potentially adverse flow-on effects.”
One of these obstacles is the complex nature of the manufacturing process for messenger RNA (mRNA) vaccines.
Potter clarifies: “For example, it is well documented that the production process used to manufacture messenger RNA vaccines is technically complex and expensive. It is thought that setting up viable mRNA vaccine manufacturing capabilities on a global scale will require significant input and know-how from the very pharmaceutical companies that developed them, with little incentive existing on their part to provide it. This may in turn lead to substandard generic vaccine manufacture providing suboptimal or even ineffective mRNA Covid-19 vaccines. It has been further postulated that the diversion of key resources into inefficient Covid 19 vaccine manufacture may also slow down vaccine production in well-established/key facilities.”
Although Australia is not like other strong opposers of the TRIPS waiver like the UK, Norway, Switzerland, or nearly the entire continent of Europe, this country has faced some struggle over the decision to join the supporting countries to the waiver, mainly because of the obstacle that Australia will encounter if they did join which is the change to the core of their patent system: “A patentee receives a monopoly right over its innovation for the patent term, in exchange for a full disclosure of its innovation for the public’s benefit on expiry of the patent. The major pharmaceutical corporates have a primary responsibility to their shareholders and have invested significant resources into R&D to develop these vaccines in a very short time frame. Without this private investment, there would be markedly fewer options for Covid-19 vaccines available worldwide and most likely none based on messenger RNA which appears to be the most effective technology to date. In this setting, there is obviously a concern that a Covid-19 IP waiver will significantly disincentivize several key players to continue Covid-19 vaccine development, and indeed may adversely affect R&D in the context of other key pharmaceuticals and vaccines in the future.”
Not just the science aspect and the legitimate rights involved, politics also play a huge deal in the final decision.
“The trade minister Dave Tehan openly admitted this in citing the shift in US policy last May as a major reason behind Australia’s support, with Australia viewing the US as a key partner in foreign policy and trade,” said Potter.
As mentioned above, Australia is not exactly a strong opposer of the TRIPS waiver, more like a neutral country.
Accordingly, although the shift of Australia might have some impacts on its neighboring countries, overall, the big picture of the world won’t change as much as the supports of the TRIPS waiver hope.
“Australia’s recent statement of full support is perhaps unlikely to have a sizeable influence on countries that are not yet on board. One might also consider that the apparent reluctance, or at best hesitancy, of the Australian government to back the initiative in full might also reduce the impact of its recent decision to join and have limited effect on alleviating the key concerns held by countries still electing to abstain,” Potter explained.
You can see a list of Australia IP firms here.