2022 WTO Ministerial Decision on the TRIPS Agreement

15 June 2022

Analysis of precedential value

The Min­is­te­r­ial Con­fer­ence of the World Trade Orga­ni­za­tion (WTO) is the organ­i­sa­tion’s top­most gov­ern­ing body and com­prises all of its 164 Mem­ber States. It meets once every two years, has author­ity to make deci­sions under any of the WTO’s var­i­ous mul­ti­lat­eral trade agree­ments, and over­sees the WTO Sec­re­tariat. Res­o­lu­tions and deci­sions of the Con­fer­ence can have impor­tant legal effect in rela­tion to these bind­ing treaties and also pro­vide author­i­ta­tive inter­pre­ta­tions of them. The Con­fer­ence is con­sti­tuted by a sig­nif­i­cant pro­por­tion of the world’s coun­tries and its recog­ni­tion and use of key lan­guage pro­vides impor­tant prece­dent that will be per­sua­sive in nego­ti­a­tions in other mul­ti­lat­eral fora.

Used as precedent

access to health products

Notwith­stand­ing the pro­vi­sion of patent rights under its domes­tic leg­is­la­tion, an eli­gi­ble Mem­ber may limit the rights pro­vided for under Arti­cle 28.1 of the TRIPS Agree­ment (here­inafter “the Agree­ment”) by autho­riz­ing the use of the sub­ject mat­ter of a patent required for the pro­duc­tion and sup­ply of COVID-19 vac­cines with­out the con­sent of the right holder to the extent nec­es­sary to address the COVID-19 pan­demic, in accor­dance with the pro­vi­sions of Arti­cle 31 of the Agree­ment, as clar­i­fied and waived in para­graphs 2 to 6 below.For greater clar­ity, an eli­gi­ble Mem­ber may autho­rize the use of the sub­ject mat­ter of a patent under Arti­cle 31 with­out the right holder’s con­sent through any instru­ment avail­able in the law of the Mem­ber such as exec­u­tive orders, emer­gency decrees, gov­ern­ment use autho­riza­tions, and judi­cial or admin­is­tra­tive orders, whether or not a Mem­ber has a com­pul­sory license regime in place.An eli­gi­ble Mem­ber may waive the require­ment of Arti­cle 31(f) that autho­rized use under Arti­cle 31 be pre­dom­i­nantly to sup­ply its domes­tic mar­ket and may allow any pro­por­tion of the prod­ucts man­u­fac­tured under the autho­riza­tion in accor­dance with this Deci­sion to be exported to eli­gi­ble Mem­bers, includ­ing through inter­na­tional or regional joint ini­tia­tives that aim to ensure the equi­table access of eli­gi­ble Mem­bers to the COVID-19 vac­cine cov­ered by the autho­riza­tion.No later than six months from the date of this Deci­sion, Mem­bers will decide on its exten­sion to cover the pro­duc­tion and sup­ply of COVID-19 diag­nos­tics and ther­a­peu­tics.