Lessons from the TRIPS Waiver Debate

The seemingly interminable discussions under the aegis of the World Trade Organization (WTO), on a possible conditional waiver of certain obligations under the TRIPS Agreement, ostensibly aim to increase access to vaccines and treatments to help WTO members address the public health emergency created by the novel coronavirus, the Covid-19 pandemic. While much of the discussions concerning a possible waiver focused on patents, the thorniest legal issues were not about patents, because removing patent protection means that information disclosed in a patent application can then be used, but rather the protection of confidential information, such as trade secrets, because removing that protection does not provide access to such information. Its disclosure must be coerced if not made voluntarily. This chapter examines the legal issues concerning coerced disclosure and discusses whether such disclosure would be effective. It then draws additional lessons from the Covid-19 pandemic on the future of vaccine and other pharmaceutical research.