Bolivia Advocates for Patent Waivers as a Human Right

By PPO Abogados

Bolivia hosted a high-level international forum, bringing together representatives from the United Nations Development Programme (UNDP) and South Centre - an intergovernmental policy research think-tank of developing countries - to advocate for the release of COVID-19 vaccine patents and their recognition as a human right.

The Coronavirus Disease 2019 (COVID-19) pandemic spurred pharmaceutical companies to conduct research and development (R&D) to develop vaccines and other medical products in response. Firms generally relied on intellectual property rights (IPR) to commercialize these products and recoup their investment in R&D.

Governments and nonprofits also funded and coordinated R&D for COVID-19 countermeasures. Limited access to and uneven distribution of COVID-19 vaccines in low- and middle-income countries (LMICs) led to calls by some governments and nongovernmental groups for the issuance of compulsory licenses (CLs) by governments to manufacture generic versions, or to waive international IPR obligations related to COVID-19 vaccines and other countermeasures, such as tests and treatments. Other governments and industry groups argued that such moves would both stifle medical innovation and fail to address the root causes of the production and distribution challenges.

Internationally, these debates have focused on potential waivers of IPR obligations under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In 2020, India and South Africa proposed a waiver (TRIPS Waiver) to temporarily suspend the protection of COVID-19 related intellectual property rights of countries belonging to the WTO.  Disagreements between developing and developed countries over how to proceed stalled the adoption of the TRIPS Waiver until 2022.

Bolivia has been a strong advocate for a TRIPS waiver on COVID-19 vaccines. In May 2021, Bolivia notified the WTO of its intention to use the TRIPS waiver flexibility to import essential vaccine doses. This signaled their urgent need for increased vaccine access. Bolivia also explored issuing compulsory licenses for COVID-19 vaccine production to allow them to authorize domestic companies to manufacture vaccines using patented technologies without the direct permission of the patent holder. Bolivian officials have been vocal about the lack of "political will" from some countries, particularly developed nations, to support the TRIPS waiver. They believe this hinders efforts to ensure equitable access to vaccines for all countries.

On June 17, 2022, after nearly two years of contentious talks, WTO members reached a decision on a five-year patent-related waiver for COVID-19 vaccines at the WTO’s 12th Ministerial Conference (MC12). The decision permits an “eligible” WTO member to authorize use of patented inventions necessary for COVID-19 vaccine production and supply, without the right holder’s consent. It allows all developing country members to qualify as eligible members, but it encourages developing country members that have existing capacity to manufacture COVID-19 vaccines “to make a binding commitment not to avail themselves” of the decision.