Open Letter: Indonesian Civil Society Organization’s Position on the Proposed Text on the TRIPS Waiver

Dear,

• Mr. Ir. H. Joko Widodo
  President of Republic of Indonesia
• Ms. Dra. Retno Lestari Priansari Marsudi, LL.M.
  Minister of Foreign Affair
• Mr. Ir. Budi Gunadi Sadikin, CHFC, CLU.
  Minister of Health
• Mr. Muhammad Lutfi
  Minister of Trade
• Mr. Febrian A. Ruddyard
  Permanent Representative of Permanent Mission of Indonesia in Geneva
• Mr. Dandy Satria Iswara
  Ambassador to WTO
• Mr. Djatmiko Bris Witjaksono
  Director General International Trade Negotiations

Since the onset of the pandemic, access to the medical products needed to prevent, treat and contain COVID-19 has been inequitable. The vast disparity in access to vaccines, diagnostics and therapeutics continues even today although they are key to facilitating and sustaining socio-economic recovery and
eliminating progression to severe infection or death.

In October 2020, South Africa and India presented a proposal to the World Trade Organization (WTO) calling for a TRIPS Waiver proposal. This proposal has received widespread support from the international community and from other WTO Members. Presently this proposal enjoys the support of
63 other WTO Members. Indonesia has also co-sponsored this proposal. Intellectual property such as patents, protection of undisclosed information are a barrier for the entry of follow-on local manufacturers. The World Intellectual Property Organization’s preliminary COVID patent landscape report shows that from 2020 to September 2021, there were already 5,293 patent filings on technologies related to COVID-19 in general including 1,465 patent filings about therapeutics and 417 about vaccine development.1 Many patents have already been granted. The know-how involved in the manufacturing of vaccines is protected as undisclosed information.

The above shows that an effective, broad, easy-to-use waiver of relevant intellectual property (TRIPS) obligations (patents, protection of undisclosed information, industrial designs and copyright) could contribute towards diversifying and expanding supply options, by providing governments greater policy
space and manufacturers the freedom to operate. Unfortunately the proposal has faced fierce resistance from developed countries, despite their promises
of global collaboration and solidarity. Last week, a text was leaked that purports to be a proposed compromise of discussions among the US, EU, South Africa and India. The WTO Director General has made clear that there is no agreement on the details of the text. This leaked text is very problematic. Some of the key problems include :

• In para 1, the decision is limited “to the extent necessary to address the COVID-19 pandemic” meaning that it is only applicable as long as COVID-19 is a pandemic, although the duration is supposedly for 3 or 5 years.
• It is unclear what is the situation with respect to pending patent applications as para 2 speaks only of patented subject matter. In reality pending patent applications can also create a chilling effect on the entry of follow-on manufacturers.
• Para 3(a) adds a condition with respect to the use of Article 31. This condition i.e. listing of patents covered by the authorization does not exist in the TRIPS Agreement and hence is TRIPS-plus. It is impossible to know the full patent landscape for COVID-19 technologies. For instance the development of mRNA vaccines requires over 200 hundred components, it is impossible to know the full patent landscape for all the components. Reference to WIPO patent landscaping report does not help to resolve the problem since the report itself says that it is unable to provide full patent landscape.
• Para 5 and Footnote 4 adds additional TRIPS-plus conditions to the use of Article 31. Notification to the TRIPS Council of the issuance of any authorization/compulsory license under Article 31 and the entities, quantities, products, countries covered by the authorization/compulsory license is not required by the TRIPS Agreement. Para 5 and Footnote 4 are TRIPS-plus conditions that will open developing country governments to significant pressure from developed countries.
• The leaked text does not waive Article 39. Instead paragraph 4 links clarification of Art.39.3 (protection of undisclosed information) to issuance of authorization under Art. 31 to overcome patent barrier. It fails to recognize that Article 39 – protection of undisclosed information is a barrier irrespective of patent status.
• The leaked text states that a solution on therapeutics and diagnostics will be agreed to in 6 months. Given that it has taken 18 months since the submission of the TRIPS waiver proposal to even reach this point, a solution is unlikely in 6 months. And if a solution is reached, there is a strong likelihood that this highly flawed text will be applied to therapeutics and diagnostics.
• The leaked text also does not avoid payment of double remuneration i.e. in the exporting and importing country for the same product.

The leaked text has been heavily criticised by law professors and civil society organisations (CSOs) across the world, including Nobel Peace Prize winning Doctors Without Borders (MSF) (see Annex attached). The overall assessment is that the leaked text does not deliver a meaningful outcome on the TRIPS Waiver proposal. While it may waive Article 31(f) and the related cumbersome procedures contained in Art. 31bis, it does not provide a simplified pathway for follow-on manufacturers. Instead by imposing additional conditions, it is erecting further barriers. Another major consideration is the possibility that this extremely weak text may be used to seek further concessions from developing country WTO Members in other areas of negotiations.

We therefore urge the Indonesian government to:

• (i) NOT accept the leaked text as has been proposed;
• (ii) to seek substantive improvements that deliver a meaningful waiver i.e. a straightforward and unconditional waiver of Articles 31(a), (b), (f), Article 28.1, Article 39 and Part III of TRIPS. Such a waiver should also extend to therapeutics and diagnostics and not contain any TRIPS-plus conditions.

Yours sincerely,

1. Indonesia for Global Justice
2. Indonesia AIDS Coalition
3. Lapor Covid-19
4. Transparency International Indonesia
5. The PRAKARSA
6. Yayasan Spiritia
7. YAKKUM
8. Solidaritas Perempuan
9. Serikat Petani Indonesia
10. Yayasan ELSA
11. Yayasan Penabulu
12. Rumah Cemara
13. AIDS Healthcare Foundation
14. Stop TB Partnership Indonesia
15. Save the Children
16. Jaringan Indonesia Positif
17. Yayasan Rekat Peduli Indonesia
18. YAPPIKA-ActionAid
19. Human Initiative
20. PKBI Jabar