Peter K. Yu

Volume 74, Issue 2, 489-550

This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than thirty provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by recounting the proposal’s strengths and weaknesses. The Article then identifies the challenges surrounding the negotiation and implementation of the proposed waiver. It shows why these two sets of challenges were neither separate nor sequential, but deeply entangled at the time of the international negotiations. To respond to these challenges and the negotiation impasse at the WTO, this Article advances an alternative proposal that calls for the deferral of select intellectual property rights in pandemic times. Aiming to “split the difference” between the proponents and opponents of the waiver, the proposal draws support from precedents involving temporal adjustments to intellectual property rights at both the international and domestic levels. The Article concludes by exploring the proposal’s scope, strengths, and limitations.