India's risks and TRIPS waiver

Context: India, with South Africa, proposed to waive key provisions of the TRIPS agreement on Covid-19 vaccines, drugs, therapeutics, and related technologies. Developed countries attempt at limiting the waiver to vaccines alone, leaving out diagnostics and therapeutics and excluding India.

Significance of TRIPS waiver for Covid-19 related  medical products

• The TRIPS agreement is part of the international legal order on trade enshrined in the World Trade Organization (WTO).
• The core idea behind the proposal is that intellectual property (IP) rights such as patents should not become a barrier in scaling up the production of medical products like vaccines, diagnostics and therapeutics essential to combat Covid-19.
• However, the WTO has failed to adopt a TRIPS waiver to date.

Geographically limited waiver: The developed world is talking of a TRIPS waiver that would be geographically limited and exclude India.

• This is a failure of India’s economic diplomacy.
• There are also attempts at limiting the waiver to vaccines alone, leaving out diagnostics and therapeutics.

Domestic factors that affected India’s global campaign for TRIPS waiver
A) India failed to use provisions under Indian Patent Act

• During the entire pandemic, India rarely made use of the existing flexibilities under the Indian Patent Act, such as compulsory licences (CL), which are consistent with the TRIPS agreement, to increase the supply of Covid-19 medical products despite being nudged by the judiciary to do so.
• On the contrary, during the peak of the second Covid wave, the central government filed an affidavit in the Supreme Court stating that the main constraint in boosting the production of key drugs is the unavailability of raw materials, not IP-related legal hurdles.
• This stand completely contradicted India’s argument internationally that views IP as an obstacle to augmenting the supply of Covid-19 medical products.

B) Lack of national strategy

• India did not proactively develop a national strategy to implement the TRIPS waiver as and when it is adopted.
• In other words, a TRIPS waiver at the WTO would only be an enabling framework.
• It would then require member countries to amend their domestic IP laws to implement the waiver.

C) Failure to involve Indian pharma industry

• The government failed to get the Indian pharmaceutical industry on board.
• Pharmaceutical bodies are a divided lot with many Indian companies speaking against the waiver, thus denting India’s global campaign.

D) Failure to walk the talk on indigenously developed Covaxin

• India should have unlocked the technical know-how of Covaxin to the world.
• While technology transfer agreements for Covaxin have been inked with domestic companies, making the vaccine technology available to anyone interested globally, at a minimal price.
• This would have exhibited India’s resolve to walk the talk on the TRIPS waiver.

Road Ahead

• While India would oppose the attempted exclusion, the lesson is that for economic diplomacy to flourish, it should be backed by concrete actions on the domestic front.