Thread by @SivaThambisetty

Yesterday I was a panellist on this discussion on the #TRIPSwaiver With thanks to @MSF_access recording is 👇

Here are a few points I want to reiterate/ and add as #WTO discussions get underway today

https://twitter.com/MSF_access/status/1437325465916686348?s=20

The idea that those who support the #TRIPSwaiver do not understand/ or are misguided, is rife.

This is why nearly 200 researchers/academics/Professors in intellectual property law put out this open letter making a reasoned case for the #TRIPSwaiver
research.kent.ac.uk/socril/ip-scho…

I was struck by MEP @msaraswati comment that there is a suggestion the European Parliament did not know what it was voting for when it supported the #TRIPSwaiver or that some members 'had pushed the wrong button'.
europarl.europa.eu/news/en/press-…

This is another way to infantilise those who oppose dominant narratives about a muscular, inviolable IP system and is itself a political achievement. Read @ShobitaP on how this plays out.

https://twitter.com/ShobitaP/status/1390340906306392068?s=20

On the form of the waiver - no one who supports it expects it to be a silver bullet. Partly because a waiver will not automatically scrape national laws, each state party will have to decide whether and how to implement it.

Refrain from enforcement of IP, mandatory or otherwise following a waiver will not be sufficient because information is enclosed in different forms including informal, secret and regulatory.

Read our extensively researched paper here: papers.ssrn.com/sol3/papers.cf…

So a 'waiver regime' requires plural measures - and imaginative solutions. Here are some:
@jamie_love

https://twitter.com/jamie_love/status/1413471758116659203?s=20

Could we compulsorily license trade secrets? See @OlgaGurgula and John Hull's proposal here papers.ssrn.com/sol3/papers.cf…

And a proposal from @rai_arti to 'top' up patent disclosures on manufacturing complex products
scholarship.law.duke.edu/faculty_schola…

To those who say IP is not implicated in vaccine shortages - I say read the room.

How have we increased production over the last six months? Through advance order to IP holders (a form of funding), repurposing of existing manufacturing facilities (Moderna did not have

a manufacturing facility at start of 2020, Biolyse was producing oncology drugs), contract manufacturing - all done at the behest of IP holders - scarcity and supply
carefully curated by them.

IP holders literally and metaphorically hold all the cards. They act in their self-interest, this is to be expected.

But we have waited long enough for their self-interest to align with humanitarian ideals to prevent unnecessary deaths.

On the EU's proposal on compulsory licensing - it's performative because it states the obvious (A 'pandemic' is a national emergency...', countries do not need to engage in negotiations with patent holders, already in Art 31 (b) & (g)...)

It's reductive - it equates the whole #TRIPSwaiver to compulsory licenses on patents.

A CL would not actually result in any technology transfer beyond what already exists in the patent (which is typically not a lot).

It's selective because it ignores TIME for patents to be granted - we do not know what patents will be filed, or are yet to be published or even if patents will be filed in many LMICs.

It ignores burdensome rules on packaging and lack of manufacturing capacity even in potential exporting countries and political will.

Read about the Bolivia-Biolyse saga here:

pink.pharmaintelligence.informa.com/PS144384/Canad…

CLs as a solution assumes a well-functioning patent system, with plenty of manufacturing capacity, and a margin for unselfish behaviour on the part of state parties and IP holders.

Not the case in the pandemic w.r.t vaccines so far.

Read @AislingMMcMahon important work on CLs

A facilitated 'waiver regime' can lead to private ordering/ governance where entities with motives other than immediate profit maximisation (could be a long game to enter a particular tech field) can initiate action because there is greater certainty on freedom to operate.

On technology transfer - it is not passive, imitation can lead to productive learning, to increasing technological proficiency.

Contract manufacturing is not the kind of tech transfer that can lead to workarounds/alternatives, to cheaper or endogenous technologies.

Last point - there are those who suggest that #TRIPSwaiver is an emotional reaction, tragic and even morally reprehensible because it takes away attention from measures that could actually work.

If we can do this through voluntary licensing, I am all for it! Let's do this 💪!

But that has not happened.

What is law for if it does not allow for ethical reflection or, even empathy. And I would suggest 4.6 million deaths are reason enough to do both.

Listen to Prof Andrew Pollard @ajpollard1 reflecting on a million avoidable deaths since pledges were made at the G7 meeting in June and

https://twitter.com/BBCr4today/status/1436226002787749889?s=20

spare a thought for collapsed economies, disrupted education and orphaned children that are now largely AVOIDABLE.

End 🧵