WTO report explains how global intellectual property system relates to the COVID-19 pandemic

The FINANCIAL — The WTO Secretariat has published a new information note about how the global intellectual property (IP) system relates to the COVID-19 pandemic and potential contributions it could make to efforts to address it. The note provides an overview of IP-related measures taken by WTO members and other stakeholders since the start of the crisis.

The paper highlights that the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) represents the most comprehensive multilateral agreement on IP, and provides a framework in which much-needed innovation in relation to COVID-19 can be encouraged, shared and disseminated, while balancing rights and obligations.

Under this framework, the way in which the global IP system is designed and implemented can be a significant factor in facilitating access to existing technologies and in supporting the creation, manufacturing and dissemination of new technologies. This includes access to protective equipment, contact tracing software, diagnostics, as well as vaccines and treatments yet to be developed which will be fundamental to effectively respond to the COVID-19 crisis.

The IP system can also support collaboration and cooperation among health technology developers, governments and other stakeholders, and the implementation of a number of initiatives addressing the voluntary sharing and pooling of IP rights (IPRs), thus responding to the spirit of collaboration that is required for the global effort to tackle the COVID-19 pandemic.

The report points to the range of policy options available under the TRIPS Agreement to deal with public health issues, such as compulsory licensing and government use of a patent without the authorization of its owner under a number of conditions aimed at protecting the legitimate interests of the patent holder. It underscores that the response to the COVID-19 pandemic has led national and regional IP offices to take initiatives to expedite or simplify their administration of the IP system, especially concerning patents and trademarks, and to provide practical support for firms seeking to develop products of potential benefit in combating the pandemic.

While much public health policy attention has focused on the patent system as a key element of the system for innovation and dissemination of medical technologies, the report notes that other areas of IP covered by the TRIPS Agreement are also significant, such as the protection of trade secrets and clinical trial data, a well-run trademark system and a balanced copyright system that takes due account of the interests of rights holders and the public to access copyright-protected works.

The note recognizes that facilitating up-to-date information and maximum transparency on legal and policy measures taken in the field of IP in response to the pandemic is in the mutual interest of all stakeholders. The aim is supporting governments and economic operators to keep abreast in a rapidly evolving trade landscape as well as to promote much-needed clarity and enable mutual learning.

The paper is intended to provide a factual background resource for members and to serve as a reference for use in practical technical assistance activities. Updated lists of IP measures undertaken by governments in the context of COVID-19 are available on the WTO’s COVID-19 webpage and the WIPO COVID-19 IP Policy Tracker.

Key points

• A full response to the COVID-19 crisis requires wide access to an extensive array of medical products and other technologies, ranging from protective equipment to contact tracing software, medicines and diagnostics, as well as vaccines and treatments that are yet to be developed. The way in which the intellectual property (IP) system is designed — and how effectively it is put to work — can be a significant factor in facilitating access to existing technologies and in supporting the creation, manufacturing and dissemination of new technologies. This is framed by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) which represents the most comprehensive multilateral agreement on IP.

• Collaboration and cooperation among health technology developers, governments and other stakeholders can be positively supported by the IP system as well as by guidance on lawful cooperation among competitors under a country’s domestic competition policy regime.

• From the beginning of the crisis, governments and stakeholders have considered how innovation is promoted, regulated and managed, including through the IP system, and the contribution that this could make to address the pandemic. A number of initiatives have addressed the voluntary sharing and pooling of IP rights (IPRs), thus responding to the spirit of collaboration that is required for any global effort to tackle the COVID-19 pandemic. Equally, a range of policy options confirmed under the TRIPS Agreement, as implemented in domestic law, remain available to WTO members as tools to deal with public health issues where needed.

• For example, the TRIPS Agreement allows compulsory licensing and government use of a patent without the authorization of its owner under a number of conditions aimed at protecting the legitimate interests of the patent holder. All WTO members may grant such licences and government use orders for health technologies, such as medicines, vaccines and diagnostics, as well as any other product or technology needed to address COVID-19. One member has already issued a government use licence for a potential treatment. In some other members, the Parliament has requested the government to issue compulsory licences to ensure access to medicines, vaccines or diagnostics for COVID-19, and others have updated or clarified their laws in the light of the pandemic.

• The need for an urgent response to the COVID-19 pandemic has led national and regional IP offices to take initiatives to expedite or simplify their administration of the IP system, especially concerning patents and trademarks, and to provide practical support for firms seeking to develop products of potential benefit in combating the pandemic.

• Transparency and the availability of up-to-date information is an immediate and critical need that embraces both trade and health-related legal and policy areas. Ensuring maximum transparency of legal and policy measures taken by WTO members in the field of IP to address the pandemic is in the mutual interest of all stakeholders. It supports governments and economic operators to keep up to date in a rapidly evolving trade landscape, provides much-needed clarity and enables mutual learning. Updated lists of IP measures undertaken by governments in the context of COVID-19 is available on the WTO’s COVID 19 webpage and the WIPO COVID-19 IP Policy Tracker.