Faced with this set of views, the President of the Council, Ambassador Xolelwa Mlumbi-Peter of South Africa, said that this point would remain suspended, as members continued to consider the proposal. Applications for exemption from WTO agreements must first be submitted to the relevant Council for consideration. After 90 days, the TRIPS Council is scheduled to report to the ministerial conference. Since the proposal was submitted on 2 October, the 90-day period expires on 31 December 2020. The TRIPS Council meeting will be reconvened on the point of the waiver proposal, if any, before that date, the President said. The persistent emergence of coronavirus clearly shows that it is important to obtain sufficient incentives for the research and development of new innovative drugs through an exclusive supply, but also that it is important to ensure the wide availability of these drugs. I propose to take a look at the patent provisions of the USMCA regarding the marketing authorization procedure for patented drugs, whether or not they offer a practical compromise between brand protection (based on research) and the availability of generic drugs (copied) or that could or should be added to a similar “TRIPSplus” agreement. In particular, I would like to propose a “research exception” against offences, similar to the mandatory regulatory exception prescribed in section 20.47 of the USMCA, and this “research exception,” which is reflected in another “research exception” versus anticipation. Section 20.6 of the USMCA states that, in the IP chapter of the USMCA, there is no interpretation and implementation to impede the application of the TRIPS and Public Health Statement. Similarly, section 20.40 of the USMCA with respect to rights and obligations under section 31 of the TRIPS or any waiver of those rights. As a result, the USMCA does not affect or amend the rights or obligations relating to compulsory licences or the use of the state, in accordance with section 31 of the TRIPS or section 31 bis of trips.

UsMCA, however, requires a specific application of Section 30 TRIPS (adapted to USMCA Section 20.39 in the USMCA): USMCA Section 20.47 requires (not optional) a regulatory exemption for pharmaceutical products solely for the purpose of producing information in order to meet marketing authorization requirements. What could be missing from trips and USMCA, especially given the global situation of COVID 19, is a (compulsory?) Research exception or experimental exception for use similar to section 20.47 USMCA [Regulatory Review Exception]. Patent holders could be “compensated” for this “derogation” in search of infringements by a “research derogation” against anticipation.