The COVID-19 Pandemic and the TRIPS Waiver : Patents and Flexibility

The World Trade Organisation’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides for global minimum standard patents. These patents potentially limit access to the products and processes for the surveillance, tracking, diagnosis and treatment of COVID-19. A possible solution is a TRIPS waiver of the implementation, application and enforcement for the prevention, containment or treatment of COVID-19. This comment addresses the ways that TRIPS patents might be mediated including through TRIPS flexibilities. The comment argues that there are sufficient means of derogating from patents (and potentially copyright, industrial designs and undisclosed information), although that alone will not resolve the access problems. The comment concludes that the key patent problem is the transfer of know-how and that developing new ideas about addressing these patent know-how transfers is the presently unaddressed challenge