TRIPS COVID Waiver

The TRIPS COVID waiver refers to the Ministerial Decision on the TRIPS Agreement adopted at the WTO's 12th Ministerial Conference (MC12) in Geneva on 17 June 2022. It was a narrowed compromise outcome of a broader proposal first tabled in October 2020 by India and South Africa, which sought to waive obligations under several sections of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) — covering copyrights, industrial designs, patents, and protection of undisclosed information — for the prevention, containment, and treatment of COVID-19.

The original India–South Africa proposal was co-sponsored by dozens of developing countries and backed by civil society groups such as Médecins Sans Frontières and the People's Vaccine Alliance. It was opposed for most of 2021 by the EU, UK, Switzerland, and others, who argued existing TRIPS flexibilities (notably compulsory licensing under Article 31 and Article 31bis for export to countries with insufficient manufacturing capacity) were adequate. The US shifted position in May 2021 under the Biden administration to support a waiver limited to vaccines.

The final MC12 decision is substantially narrower than the original proposal:

• It applies only to patents on COVID-19 vaccines, not therapeutics or diagnostics.
• It clarifies and streamlines how eligible WTO members can authorize use of patented subject matter without the right holder's consent (effectively easing Article 31 procedures).
• It permits export of vaccines produced under such authorizations, waiving the Article 31(f) "predominantly for the domestic market" restriction.
• It is limited to eligible members — developing countries, with China declining to use the mechanism.
• It runs for five years from adoption, subject to extension.

A planned six-month follow-up decision on whether to extend the waiver to therapeutics and diagnostics was repeatedly postponed and remained unresolved as of MC13 in February–March 2024. Critics argue the final text added little to existing flexibilities; proponents call it a precedent for future pandemic responses.