WT/MIN(22)/W/15  
 
10 June 2022  
(22-4432) Page: 1/3 
Ministerial Conference  
Twelfth Session  
Geneva, 12 -15 June 202 2 Original: English  
 
 
DRAFT MINISTERIAL DECISION  
COMMUNICATION FROM THE CHAIR OF THE COUNCIL  FOR TRIPS   
Following text -based negotiations in the TRIPS Council on the basis of document IP/C/W/688 , and 
without prejudice to t he final position of Members, the following draft decision is being forwarded to 
Ministers for consideration at the 12th Ministerial Conference . 
 
It remains the understanding of all delegations that any overall outcome will have to be agreed by 
all Member s. 
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MINISTERIAL DECISION ON THE TRIPS AGREEMENT  
Adopted on [XX] June 2022  
The Ministerial Conference,  
 
Having regard  to paragraphs 1, 3 and 4 of Article IX of the Marrakesh Agreement Establishing 
the World Trade Organization ("the WTO Agreement");  
 
Noting the exceptional circumstances of the COVID -19 pandemic;  
 
 Decides as follows:  
 
1. Notwithstanding the provision of pat ent rights under its domestic legislation, an eligible 
Member1 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 patent2 
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.  
 
2. 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 
 
1 [For the purpose of this Decision, all developing country Members are eligible Members. Developing 
country Members with capacity to export vaccines are encouraged to opt out from this Decision.] [For the purpose 
of this Decision, developing country Member s who exported more than 10 percent of world exports of COVID -19 
vaccine doses in 2021 are not eligible Members.]  
2 For the purpose of this Decision, it is understood that 'subject matter of a patent' [includes][means all 
finished COVID -19 vaccine products ,]ingredients and processes [necessary ] for the manufacture of the 
COVID - 19 vaccine.  
Alternative wording  
[For the purpose of this Decision, it is understood that 'subject matter of a patent' refers to [finished] 
COVID -19 vaccine products, and [ingredients ][products] and  processes necessary for the manufacture of the 
COVID -19 vaccine .] 
 WT/MIN(22)/W/15  
 
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  in the law of the Member such as executive orders, emergency decrees, governmen t use 
authorizations, and judicial or administrative orders, whether or not a Member has a 
compulsory license regime in place. For the purpose of this Decision, the "law of a Member" 
referred to in Article 31 is not limited to legislative acts such as thos e laying down rules on 
compulsory licensing, but it also includes other acts, such as executive orders, emergency 
decrees, and judicial or administrative orders.  
 
3. Members agree on the following clarifications and waiver for eligible Members to authorize 
the use of the subject matter of a patent in accordance with paragraphs 1 and 2:  
 
(a) An eligible Member need not require the proposed user of the subject matter of a patent 
to make efforts to obtain an authorization from the right holder as set out in 
Article  31(b). 
 
(b) 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 th is 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.  
 
(c) Eligible Members shall undertak e all reasonable efforts to prevent the re -exportation of 
the products manufactured under the authorization in accordance with this Decision that 
have been imported into their territories under this Decision.3 Members shall ensure the 
availability of effective legal means to prevent the importation into, and sale in, their 
territories of products manufactured under the authorization in accordance with this 
Decision, and diverted to their markets inconsistently w ith its provisions, using the 
means already required to be available under the TRIPS Agreement.   
 
(d) Determination of adequate remuneration under Article 31(h) may take account of the 
humanitarian and not -for-profit purpose of specific vaccine distribution p rograms aimed 
at providing equitable access to COVID -19 vaccines in order to support manufacturers 
in eligible Members to produce and supply these vaccines at affordable prices for eligible 
Members. In setting the adequate remuneration in these cases, elig ible Members may 
take into consideration existing good practices in instances of national emergencies, 
pandemics, or similar circumstances.4 
 
4. Recognizing the importance of the timely availability of and access to COVID -19 vaccines, it 
is understood that A rticle 39.3 of the Agreement does not prevent an eligible Member from 
enabling the rapid approval for use of a COVID -19 vaccine produced under this Decision.  
 
5. For purposes of transparency, as soon as possible after the adoption of the measure, an 
eligible Member shall communicate to the Council for TRIPS any measure related to the 
implementation of this Decision, including the granting of an authorization.5  
 
 
3 In exceptional circumstances, an eligible Member may re -export COVID -19 vaccines to another eligible 
Member for humanitarian and not -for-profit purposes, as long as the el igible Member communicates in 
accordance with paragraph 5.  
4 This includes the remuneration aspects of the WHO -WIPO -WTO Study on Promoting Access to Medical 
Technologies and Innovation (2020), and the Remuneration Guidelines for Non -Voluntary Use of a Pate nt on 
Medical Technologies published by the WHO (WHO/TCM/2005.1).  
5 The information provided shall include the name and address of the authorized entity, the product(s) for 
which the authorization has been granted and the duration of the authorization. The  quantity(ies) for which the 
authorization has been granted and the country(ies) to which the product(s) is(are) to be supplied shall be 
notified as soon as possible after the information is available [, if possible before a/any shipment takes place].  WT/MIN(22)/W/15  
 
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  6. An eligible Member may apply the provisions of this Decision  [so that authorized uses 
continue no later than][ until] [3][5][10] years from the date of this Decision. The General 
Council may extend such a period taking into consideration the exceptional circumstances 
of the COVID -19 pandemic. The General Council wil l review annually the operation of this 
Decision.  
 
7. Members shall not challenge any measures taken in conformity with this Decision under 
subparagraphs 1(b) and 1(c) of Article XXIII of the GATT 1994.  
 
8. [No later than six months from the date of this Decisio n, Members [will][shall] decide 
[whether to extend this decision] [on its extension] to cover the production and supply of 
COVID -19 diagnostics and therapeutics.]  
 
9. This Decision is without  prejudice to the flexibilities that Members have under the TRIPS 
Agreement, including flexibilities affirmed in the Doha Declaration on the TRIPS Agreement 
and Public Health , and without prejudice to their rights and obligations under the TRIPS 
Agreement, except as otherwise provided for in paragraph 3(b). For greater cer tainty, this 
Decision is without prejudice to the interpretation of the above -mentioned flexibilities, rights 
and obligations outside the scope of this Decision.  
 
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