On 4 March, Politico reported that the Polish presidency of the Council of the European Union (EU) is expressing doubt that the Pandemic Agreement being negotiated at the World Health Organization (WHO) will be concluded before the May deadline. This starkly contrasts the optimism voiced by negotiators in Geneva at the end of the 13th round of talks last month. The presidency’s pessimism may be based on the difficulty the EU is experiencing in getting the noses of its member states to point in the same direction. It is no secret that in particular Germany takes a hard line on issues related to the sharing of manufacturing know-how and technology transfer.
A contentious point in the negotiations is a proposed footnote on technology transfer. In the draft of the negotiation text made available after INB13, the latest version reads:
“For the purposes of this Agreement, transfer of technology refers to a mutually agreed process where technology is transferred on mutually agreed terms. This understanding is without prejudice to and does not affect the measures that Parties may take in accordance with their domestic or national laws and regulations, and compliant with their international obligations on intellectual property.”
This footnote is proposed by the INB Bureau is not yet an agreed text. A key issue is the insistence of some member states to add the term “voluntary” whenever mutually agreed terms are mentioned.
However, the words “mutually agreed process” and “mutually agreed terms” in relation to technology transfer agreements imply without a doubt that the contracts are negotiated and concluded in a voluntary manner. Adding the term “voluntary” is redundant, but not without risks because it may throw up barriers to other measures; for example, compulsory patent licensing or regulatory measures.
Among the EU countries it seems that Germany is taking a hard line and continues to insist on adding the term “voluntary” in addition to “mutually agreed terms and conditions”. This raises eyebrows because Germany recognised, early in the Covid-19 pandemic, that it needed to amend its legislation to enable effective use of compulsory measures. On 27 March 2020, Germany passed the “Act on the Protection of the Population in Case of an Epidemic Situation of National Significance”, which facilitates use of a patented technology for the public welfare, without permission of the patent holder, also known as compulsory licensing.
The member states that insist on adding the term “voluntary” to “mutually agreed terms” where the sharing of technology and know-how is concerned do so possibly because they are of the view that deciding to engage in technology transfer should be entirely up to the parties that hold the technology. Leaving such a decision entirely in the hands of the technology holders is not wise and certainly not desirable during health emergencies. In the absence of voluntary action to share essential health technology, governments need to be able to step in and regulate. (We have written about the need to ensure access to know-how in more detail here.)
In addition, insisting on “voluntary” as the only way to get to the negotiation table limits governments’ options for incentivising parties to enter into technology transfer agreements. Such incentives could consist of carrots as well as sticks. As Prof. Suerie Moon has pointed out: “One possible approach is to make the benefits of transfer outweigh the costs of not transferring technology, using carrots and sticks, such that it becomes rational for the commercial actor to willingly engage in such transfer”.
Ellen ‘t Hoen, LLM PhD, is a lawyer and public health advocate with over 30 years of experience working on pharmaceutical and intellectual property policies.