What is a “patent disclaimer” anyway? How is this relevant during COVID’1

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The “patent surrender” is a proposal to waive certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) for three years. The TRIPS Agreement requires certain member countries, including the United States, to have certain minimum intellectual property protections. While this proposal is often referred to as a “patent waiver,” the proposal would also waive sections associated with copyright, industrial designs and undisclosed information.

The TRIPS Agreement already contains provisions according to which, in a national emergency, a government can use a patented subject matter, including a compulsory license, without the consent of the patentee. These provisions require the patent owner to receive reasonable compensation. Due to the COVID emergency, Israel and India have invoked the provisions to license pharmaceutical patents held by US producers. The proposed patent waiver, however, goes further than the existing provisions of the TRIPS Agreement, as it would not take into account, without compensation, the patents concerned.

All governments opposed to the waiver argue that current WTO rules already allow countries to apply for a “compulsory license” to override intellectual property in an emergency. However, a group of researchers in the UK pointed out that compulsory licenses are extremely complex and time consuming to apply.

One of the biggest concerns about IP disclaimers is that they provide a shortcut for competitors looking to acquire expensive technology. The companies also claim that intellectual property relief will not speed up vaccine manufacturing because there is a shortage of equipment and it may take several years to build capacity from scratch. Because of these shortcomings, countries might have the right to manufacture and distribute vaccines without fear of counterfeiting, but would not be able to exercise this right. For these reasons, many opponents suggest that instead of implementing a patent waiver, developed countries should increase exports of the COVID vaccine to countries in need.


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