IP/C/W/671  
 
27 November 2020  
(20-8611) Page: 1/2 
Council for Trade -Related Aspects  of 
Intellectual Property Rights  Original: English  
 
 
QUESTIONS ON INTELLECTUAL -PROPERTY CHALLENGES EXPERIENCED BY MEMBERS  
IN RELATION TO COVID -19 
COMMUNICATION FROM AUSTRALIA, CANADA, CHILE AND MEXICO  
1  INTRODUCTION  
1.  As the world continues to grapple with the profound social and economic challenges caused by 
COVID -19, WTO Members have engaged in constructive dialogue on how the multilateral rules -based 
trading system can support an inclusive, sustainable, and resilient recovery. Given the complex 
challenges created by the pandemic , a coordinated global response is needed to support 
international efforts to prevent, contain, and treat COVID -19. Through seeking multilateral solutions, 
including on how trade rules can be used to address these important challenges, we can be better 
prepared to fight both COVID -19 and future pandemics.  
2.  With respect to intellectual property (IP), the WTO TRIPS Council provides an important forum 
to discuss complex issues and concrete challenges faced by WTO Members, as well as to share 
Members’ experience s on how incentives for innovation can be appropriately balanced with other 
public health policy considerations. In this regard, the co -sponsors of this communication take note 
of the communication by Eswatini, India, Kenya, Mozambique, Pakistan and South Africa on a 
proposed waiver from certain provisions of the TRIPS Agreement for the prevention, containment, 
and treatment of COVID -19 (document IP/C/W/669), as well as the subsequent communication from 
South Africa titled Examples of IP issues and barriers  in COVID -19 pandemic (IP/C/W/670). The 
co-sponsors of the present communication also welcome the constructive exchange among Members 
at the recent 15 -16 October and 20 November 2020 formal and informal sessions, respectively, of 
the TRIPS Council.  
3.  The co -sponsors of this communication remain of the view that these important, challenging, and 
complex issues merit further reflection and significant consideration, in order to identify any specific 
and concrete IP -related challenges faced by Members in addres sing COVID -19. In addition, we take 
note that IP rights are one part of a broad discussion informing the availability and accessibility of 
treatments for COVID -19. Indeed, as the Doha Declaration on the TRIPS Agreement and Public 
Health emphasizes, the TRI PS Agreement itself is part of the wider national and international effort 
to address public health problems. With respect to COVID -19, this broader response includes 
significant investments through procurement mechanisms like the Access to COVID -19 Tools 
Accelerator and the COVAX Facility and Advance Market Commitment, as well as work within the 
WTO and elsewhere to safeguard and protect global supply chains.   
4.  The co -sponsors of this communication are actively committed to a comprehensive, global 
approach  that leverages the entire multilateral trading system in place to supporting the research, 
development, manufacturing, and distribution of safe and effective COVID -19 diagnostics, 
equipment, therapeutics, and vaccines. The co -sponsors also reaffirm their support for the 
TRIPS  Agreement, including the flexibilities it provides, and for the Doha Declaration on the 
TRIPS  Agreement and Public Health. In this context, we invite consideration of how the existing legal 
framework under the TRIPS Agreement, includi ng the flexibilities affirmed under the 
Doha Declaration on the TRIPS Agreement and Public Health, have operated thus far in the context 
of Members’ efforts to address the COVID -19 pandemic. We are also committed to fully 
understanding the nature and scope  of any concrete IP barriers experienced by Members related to 
or arising from the TRIPS Agreement, and such that would constitute impediments to the fight 
against COVID -19. To that end, and with a view to facilitating a consensual, evidence -based IP/C/W/671  
 
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  approach , the co -sponsors of this communication therefore respectfully submit the following 
questions to Members for their consideration and response.  
2  QUESTIONS  
1. Have Members, or organizations acting on their behalf, experienced IP challenges that have 
impeded or prevented the timely procurement of COVID -19 diagnostics, equipment, therapeutics or 
vaccines? If so, can Members describe these challenges, including in relation to the 
TRIPS  Agreement . 
2. With respect to the local production or manufacture of specific  COVID -19 diagnostics, equipment, 
therapeutics or vaccines, have Members, or organizations acting on their behalf experienced IP 
challenges that have impeded or prevented local production or manufacturing? If so, can Members 
describe these challenges, incl uding in relation to the TRIPS Agreement?  
3. Have Members formally initiated processes toward the issuance of compulsory licences under 
Article 31 of the TRIPS Agreement in relation to any COVID -19 diagnostics, equipment, therapeutics 
or vaccines, but were  unable to complete these processes and issue any corresponding compulsory 
licence due to circumstances other than those attributable to domestic legislation, procedures, or 
litigation? If so, can Members identify what prevented the issuance of any such co mpulsory licence?  
4. Have Members formally initiated processes toward the issuance of compulsory licences under 
Article 31 bis in relation to COVID -19 pharmaceutical products, but were unable to complete these 
processes and issue any corresponding compulsor y licence due to circumstances other than those 
attributable to domestic legislation, procedures, or litigation? If so, can Members identify what 
prevented the issuance of any such compulsory licence?  
5. Have Members experienced copyright -related challenge s in specific instances of procurement or 
of seeking local manufacture or production of COVID -19 diagnostics, equipment, therapeutics or 
vaccines? Specifically, have Members experienced any such challenges that could not be addressed 
through the implementa tion of the flexibilities contemplated in the TRIPS Agreement? If so, can 
Members describe these challenges, including in relation to the TRIPS Agreement?  
6. Have Members experienced industrial -designs -related challenges in specific instances of 
procurement or of seeking local manufacture or production of COVID -19 diagnostics, equipment, 
therapeutics or vaccines protected by industrial -design rights? Specifically, have Members 
experienced any such challenges that could not be addressed through the  implementation of the 
flexibilities contemplated in the TRIPS Agreement? If so, can Members describe these challenges, 
including in relation to the TRIPS Agreement?  
7. Have Members experienced challenges in specific instances of procurement or of seeking local 
manufacture or production of COVID -19 diagnostics, equipment, therapeutics or vaccines with 
underlying undisclosed information? In any such instances, have Members experienced challenges 
with the application of the flexibilities outlined the TRIPS Ag reement, due to circumstances other 
than those attributable to domestic legislation, procedures, or litigation? If so, can Members describe 
these challenges, including in relation to the TRIPS Agreement?  
8. In relation to the above questions, as the TRIPS Agreement is a minimum -standards agreement 
that is given effect via the applicable domestic laws of its Members (per Article 1.1), how would the 
proponents envisage giving effect to such a waiver under Members’ domestic IP legal regimes? Put 
another way, w hat specific legal amendments or actions would the proponents seek to enact for the 
prevention, containment, and treatment of COVID -19 that are not – or may not be – consistent with 
the TRIPS Agreement and its flexibilities?  
 
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