Temporary Waiver of Patent Rights in Public Health Emergencies: Inadequacy of Provisions during the COVID-19 Crisis

Abstract

Abstract After more than two decades of disagreement relating to the affordability of drugs against the HIV/AIDS crisis, particularly in developing countries, the outbreak of the COVID-19 pandemic is now another global public health crisis with the desperate need for pharmaceutical and medical products for a public health emergency. The COVID-19 outbreak has again highlighted the question of how to balance patent protection with the need to ensure access to, and affordability of medicines as a corollary of the right to life, during a public health emergency. In October 2020, India and South Africa submitted an application to the WTO TRIPS Council for the temporary waiver of intellectual property protection on pharmaceutical and medical products. The aim of this application is to facilitate the importation of medical products, by developing countries seeking to do so, in response to the pandemic. This waiver application accounts for the considerable difficulties developing and least developed countries are facing in using the compulsory licensing system to import pharmaceutical products for the pandemic. The COVID-19 pandemic has challenged the principles of ‘multilateralism’ and its institutions by reintroducing ‘nationalism’ to international trade regulation. This analysis relies on existing literature to illustrate the problem under investigation. The key findings in the analysis include among others the rejection of patent protection waiver and the limitations of patent rights protection to the needs of public health emergencies. The analysis ends with a conclusion and some recommendations.