Mr. Ir. Joko Widodo
The President of the Republic of Indonesia
Mr. Muhammad Lutfi
The Trade Minister of the Republic of Indonesia
Mr. Budi Gunadi Sadikin
The Health Minister of the Republic of Indonesia
Ms. Retno L. Marsudi
The Foreign Affairs Minister of the Republic of Indonesia
Mr. Dandy Satria Iswara
The Indonesian Ambassador to the WTO in Geneva
To whom it may concern
We are writing to the honorable ladies and gentlemen regarding WT/MIN(22)/W/15, which contains Draft Ministerial Decree regarding the TRIPs Agreement. This draft decision is in contrast and far from the original TRIPS Waiver proposal proposed by South Africa and India in October 2020 and the revised version in May 2021 (IP/C/W669/Rev.1). Indonesia is a co-sponsor of this proposal.
This proposal is motivated by the awareness that there is a need to diversify the production and supply of medical devices. However, it is crucial to facilitate and sustain socio-economic recovery and eliminate the development of severe infections or deaths. Yet after more than two years of COVID-19, there is a massive gap in access to vaccines, diagnostics, and therapies.
We acknowledge and appreciate the Indonesian government’s role in the text-based negotiations thus far to improve the text under negotiation. We note some improvements
in the Draft Ministerial Decree from the text submitted by the WTO Director-General in IP/C/W/688. However, there are still some significant deficiencies in the Draft Ministerial Decreeneeding to be corrected as well as the text in brackets which needs to be finalized.
In this letter, we highlight several fundamental points:
- Any terms which directly or indirectly impose a “necessity test” should be removed from the draft text. The terms “to the extent necessary” and “necessary” can be found in paragraphs 1 and footnote 2 of the draft decision text. The implementation of these terms in the context of mandatory licensing under Article 31 of TRIPS is TRIPS-plus and sets a problematic precedent that will hinder the implementation of mandatory licenses in Indonesia in the future.
- Choices for the eligibility criteria listed in footnote 1 are not acceptable. The 10% criterion is arbitrary and sets a dangerous precedent for other areas of negotiation in the WTO. The option of encouraging developing countries with the capacity not to implement the decision (TRIPS waiver) is illogical. The purpose of this Decree is to manufacture and supply vaccines, yet the draft decision instead encourages developing countries with such capacity to opt-out of implementing it. Such language will only increase pressure on Indonesia, which has the production capacity, not to implement TRIPS flexibility such as mandatory licensing.
We encourage dearest ladies and gentlemen to propose an alternative text that allows all WTO Members to implement the Decision waiver by giving each WTO member the choice to implement or not to implement the Decision.
- The definition of “patent subject” must be non-exhaustive; hence it includes all devices needed for vaccine manufacture.
- Any notification required in paragraph 5 shall be limited, made at the discretion of the Member implementing the Decision, and only after the supply has been made.
- Paragraph 6 of the Draft Ministerial Decree regarding the period of time contains the bracketed text which can end the implementation of a compulsory license at the end of the waiver. This is a TRIPS-plus. Indonesia has provided a mandatory license for the duration of the patent, and the mandatory license may not expire due to the waiver decision period ends. The draft text of the Decision only contains a waiver of Article 31(f), and this waiver may be time-limited.
- The duration of the TRIPS waiver must also be between 5 and 10 years. Any duration less than 5 years is not acceptable.
- Indonesia should call for the scope of the draft Ministerial Decree to be extended to therapeutics. This means changing the entire text to include therapy. Paragraph 8 delays the therapeutic decision by six months which we believe is unacceptable.
If this Draft Ministerial Decree is to be adopted, the above changes are essential.
However, we emphasize that the draft Ministerial Decree is significantly lacking than what is needed for the production and supply of devices needed during a public health emergency such as COVID-19 therefore Indonesia should also consider rejecting the Draft Ministerial Decree and instead call for a comprehensive settlement waiver as initially proposed in IP/C/W/669/Rev.1.
We believe this is our perspective. We hope that you can consider our perspective as an effort to save many patients and help restore the economy. Thank you for your attention.
Those who co-signed this letter:
- Indonesia for Global Justice (IGJ)
- Indonesia Aids Coalition (IAC)
- Indonesia Human Rights Committee for Social Justice (IHCS)
Rahmat Maulana Sidik, Executive Director of IGJ, +6281210025135
Gunawan, IHCS Senior Advisor, +62 813-8142-0793
Aditya Wardhana, Executive Director of IAC, +62 811-9939-399