Thread by @hhesterm

Bit patents and access to medicines at the WTO news: Bolivia's request for a compulsory license for export under existing TRIPS rules is going forward. A quick thread on where we stand /1

https://twitter.com/geoffreyyork/status/1392205217630937088

Great. That should be BIG news. Wow. OK. So, where were we? Right: Some background. Patents are territorial. A US patent is for the US, a UK patent is for the UK and so on. That's an important principle to know. /2

Countries can, under their laws, force a patent holder to grant a license. That is legal under WTO law - the TRIPS agreement. There are tons of requirements. Like paying money, imposing each compulsory license on its own merits etc. /3

But territoriality of patents creates a problem. Say you are Bolivia. You don't get a certain drug. So you want to impose a compulsory license - and that's fine, you can break your national, Bolivian patent. But: nobody can produce the drug in Bolivia. What now? /4

You could ask Canada. But then TRIPS requires a compulsory license to be mostly for domestic use. So Canada could allow its manufacturer to produce, but not for export. That was the law in the olden days. /5

But once the issue had been identified a system of compulsory licenses for exports was created. I'll spare you the technical details. But it requires both the importing AND the exporting country to act. /6

That happened once. In 2007. Rwanda imported, Canada granted the CL for export. A Canadian company produced. And... didn't think this was very economic. Here's what I wrote in 2007 when I was young. /7 asil.org/insights/volum…

But now... Bolivia intends to use the system. First step: notify the Trips council of your intent to use the mechanism. Bolivia notified on February 17. docs.wto.org/dol2fe/Pages/S…

Step 2: notify the details of what you need. Bolivia notified that today. Available in Spanish only. Here: docs.wto.org/dol2fe/Pages/S…

There's an interesting titbit on the notification. Bolivia wrote this on patent status: "Por determinarse. En la medida en que se hayan solicitado u otorgado patentes para los productos necesarios, el Estado Plurinacional de Bolivia tiene la intención de conceder licencias ..."

Or in short: Bolivia does not know the patent status. Now you might think that's reckless. But it's actually symbolic of the complexity of the system. The popular assumption there's one patent on one substance is wrong...

There can be patents on basic substances, on processes. On processes you might be using, but you are not sure. Some claims in patents can be vague. Do you need a license or not? 2 attorneys will provide you with 3 opinions.

So what Bolivia wrote is refreshingly realistic and indicative of some of the difficulties.
And note: this is where things stand. No WTO notification by the exporting member yet. What does this mean?

It means that from what we know this currently seems to be in the Canadian court. As the potential exporting Member.

https://twitter.com/DebraPS/status/1392221588842377219?s=20

What does it mean in the larger fight? This will be used as an argument mercilessly "Oh look. The system is working" "Oh look. The delay shows it isn't." The reality is: it shows that we need vaccines. And we have to try what we can try.

Curiously one legal avenue is Art. 73 - the security exception. The equivalent of what the Trump administration used for steel without having much of a security rationale. Here ... there is a better argument.