The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic

The structure of global intellectual property law as incorporated in the World Trade Organization (WTO) Agreement on Trade-Related Aspects Intellectual Property Rights (TRIPS) is implicated current lack COVID-19 vaccines, medical equipment, medicines and diagnostics (hereafter, ‘health-technologies’), which are needed to combat pandemic. Although equitable access vaccines moral, political economic interests public requires solidarity, phenomenon ‘vaccine nationalism’ has brought into sharp relief misalignment legal financial incentives produce distribute equitably. crisis further demonstrates failure high-income countries (HICs) realise promise they made at time TRIPS negotiations 1994, that by agreeing terms TRIPS, lower middle-income (LMICs) would benefit from technology transfer building productive capacity. As such, revealing not only inadequacies how deal with emergencies, but also deficiencies within international ‘patent bargain’ itself. This paper elucidates issues surrounding ‘TRIPS waiver’ proposal initially put forward India South Africa October 2020, which, May 2021, supported more than 60 states, received statements support Health Organisation (WHO). We analyse different rights relevant – focusing primarily patent trade secrets most present vaccine context. explain why existing flexibilities around compulsory licensing incapable addressing pandemic context adequately, both procedure substance. The extent health posed undeniable response untenable. Given ongoing absence sufficient engagement pharmaceutical industry proposed mechanisms share rights, data know-how address pandemic, we argue mandatory needed. waiver an essential instrument this for enabling a radical increase manufacturing capacity, hence supply, creating pathway achieve access. We make two arguments effect: first, necessary proportionate measure clearing (IP) barriers direct, consistent efficient fashion, freedom operate companies other technologies without fear infringing another party’s IP attendant threat litigation; second, acts important political, moral lever towards encouraging solutions aimed wider interest public.