AIPPI approves a position paper on the WTO Ministerial Decision on the TRIPS Agreement adopted on 17 June 2022

On 12 September 2022, during its World Congress celebrated in San Francisco, CA, the AIPPI Bureau passed a position paper regarding the World Trade Organisation (WTO) Ministerial Decision (MD) on the TRIPS Agreement adopted by the 12th Ministerial Conference of the WTO on 17 June 2022. The contents of the MD can be read here. As some would know, the MD gives eligible members greater scope to take direct action to diversify production of COVID-19 vaccines and to override the exclusive effect of patents through a targeted waiver over the next five years.

The position paper was prepared by AIPPI’s Standing Committees on TRIPS and Pharma, and constitutes a follow up to what was published on 12 May 2021, on the proposal for a waiver for certain provisions of the TRIPS agreement for the prevention, containment and treatment of COVID-19 (read the document here).

According to the 2022 position paper (available here), AIPPI reiterates a plurality of statements made in the 2021 position (please see items B.4 – B.9), recalling that the TRIPS Agreement is often described as one of the three “pillars” of the WTO (the other two being: trade in goods – the traditional domain of the GATT – and trade in services) and that a point of view from a WTO member overlooking the relevance of intellectual property would be incompatible with said member joining the WTO.

AIPPI has been emphatic in that it supports the TRIPS Agreement and the flexibilities it provides to WTO members as well as the freedom to determine the appropriate method of implementing the provisions of the agreement within the members’ own legal systems. Among said flexibilities, AIPPI has specifically mentioned Articles 31, 31bis, the Doha Declaration on the TRIPS Agreement and Public Health , as well as those aimed to permit developing and least-developed countries to use transition period extensions to implement TRIPS-compatible norms  in a manner that enables them to pursue their own public policies, either in specific fields like access to pharmaceutical products  or protection of their biodiversity, or more generally, in establishing macroeconomic institutional conditions that support economic development.  This support is reflected in resolutions passed by AIPPI (see item 8 of the 2021 position paper).

However, the 2022 position paper highlights that AIPPI does not endorse law changes, statements or suggestions addressing intellectual property rights as actual or potential barriers to access to products or services of any kind, without a clear and predictable legal framework. Moreover, the paper raises a series of concerns that its call for such a framework was not taken into account by the MD (see point 4 of the 2022 position paper and subparagraphs), including: unclear definitions, incomplete clarifications, large broadness and vague boundaries of language used in the MD as well as the extensive discretion given to eligible governments to make use of any legal instrument enacted or to be enacted to authorize the use of patented subject matter without the rights holder’s consent, the silence in the MD on the issue of parallel imports,  the unjustified pre-set possibility to apply the provisions of the MD for five years without limitation to reaching at least a certain degree of control of the COVID-19 pandemic in an eligible member, among other issues.

Finally, AIPPI states that in view of the MD’s drawbacks it does not support the possible extension of the MD to cover the production and supply of COVID-19 diagnostics and therapeutics as a possible outcome of the discussions currently taking place within the WTO TRIPS Council, and encourages WTO TRIPS Council members not to approve such an extension, for which the MD has set a deadline expiring on 17 December 2022.