TRIPS Decision extension

Following the landmark MC12 agreement on a waiver of certain requirements concerning compulsory licensing for COVID-19 vaccines, WTO members had been discussing whether to extend the TRIPS Decision adopted at MC12 to COVID-19 diagnostics and therapeutics.

Discussions did not deliver progress, with members largely reiterating their standing positions. Developing and least developed country (LDC) members contended that the concentration of manufacturing contributes to the inequitable rollout of COVID-19 diagnostics and therapeutics, while others questioned whether intellectual property is the cause of the access problem.

The first report adopted by members summarizes those discussions. The text recognizes the considerable efforts members have made to support a fact- and evidence-based discussion on paragraph 8 of the MC12 Decision on the TRIPS Agreement regarding its possible extension to cover COVID-19 diagnostics and therapeutics. It also acknowledges that despite these efforts, consensus could not be reached on the extension of the Decision.

COVID-19 pandemic response and preparedness for future pandemics

The second report notes that the TRIPS Council will continue its work as directed by the Ministerial Declaration from MC12 to review and build on all the lessons learned and the challenges experienced during the COVID-19 pandemic, and to build effective solutions in case of future pandemics, in an expeditious manner.

The role of intellectual property (IP), and more specifically voluntary licensing, technology transfer, the operation of the Medicines Patent Pool (MPP), geographical limitations of licences and the operation of Article 31(f) of the TRIPS Agreement were noted as areas of interest to members in that context.  

Both reports were the result of the intense consultations held by the Council Chair, Ambassador Pimchanok Pitfield of Thailand, with a number of delegations and group coordinators over the past few months. She thanked members for their flexibility in reaching consensus and encouraged them to now focus on the preparation of the MC13 outcome document with respect to IP issues.

Non violation and situation complaints (NVSCs)

Members were not able to adopt a Council recommendation to MC13 on non-violation and situation complaints (NVSCs) under the TRIPS Agreement. In a Decision on TRIPS non-violation complaints, adopted by ministers at MC12, the TRIPS Council was tasked with examining this issue and proposing recommendations to MC13.

In light of the lack of substantive discussions on this topic since MC12, the Chair of the TRIPS Council suggested that members consider extending once again the moratorium on such complaints until MC14. She circulated a draft decision to that effect in November 2023, but so far members have not been able to agree on its adoption. The Chair suggested that this item remains open until members are closer to agreement on this matter.

Non-violation and situation complaints refer to whether and under what conditions members should be able to bring WTO dispute complaints where they consider that another member's action, or a particular situation, has deprived them of an expected advantage under a WTO agreement, even though no obligation under the agreement has been violated.

Historically, members have differed on whether such non-violation cases are feasible in the area of TRIPS. Some delegations consider NVSCs essential to maintaining the balance of rights and obligations within the TRIPS Agreement while helping to ensure that legitimate obligations are not circumvented or avoided. Others believe there is no place for the application of NVSCs in IP because of the legal insecurity and curtailment of flexibilities that could ensue and favour their complete ban in the TRIPS area.

Under Article 64.2 of the TRIPS Agreement this “moratorium” (i.e. the agreement not to use TRIPS non-violation cases) was to last for the first five years of the WTO (i.e. 1995–99). It has been extended since then, from one Ministerial Conference to the next.

MC13 outcomes

As part of the Ministerial Declaration adopted at MC13 in Abu Dhabi, ministers encouraged the relevant WTO bodies to continue their work on reviewing and building on all the lessons learned during the COVID-19 pandemic and to build effective solutions in case of future pandemics in an expeditious manner.

Ministers noted the activities of the WTO Secretariat in supporting this work, including through cooperation with the World Health Organization (WHO) and the World Intellectual Property Organization (WIPO) and with other international organizations. They encouraged the Secretariat to continue this work.

Ministers adopted a Ministerial Decision to extend the moratorium on non-violation and situation complaints regarding the TRIPS Agreement until the 14th WTO Ministerial Conference.