On May 5th United States Trade Representative,
Katherine Tai, announced that the United States
would support a waiver of IP protections
on COVID-19 vaccines.
IP waivers are being discussed
at the World Trade Organization, or WTO,
after being proposed by India and South Africa,
two countries that have been hit
very hard by the pandemic.
Numerous countries, and many commentators
and organizations also support a waiver.
The purpose of the waiver is to ensure a country
would not be found in violation of TRIPS,
an international intellectual property treaty
that requires member countries to provide and enforce
a certain minimal level of intellectual property.
Patents come with a period of exclusivity
wherein the patent holder has the right to exclude others
from making, using, or selling
the patented invention without permission.
TRIPS requires its member countries
to provide patent protection,
and the means to enforce those patents.
TRIPS also allows for compulsory licensing
an exception to this usual right of exclusivity
so long as the patent owner is provided
adequate remuneration in an emergency,
a country can authorize someone,
other than the patent owner,
to make and use a patented invention
without the permission of the patent owner.
Because TRIPS already permits countries
to grant compulsory licenses of patented technology
in cases of emergency, the understanding
is that the waiver would likely go further.
For example, maybe requiring a transfer
of unpatented know-how from patent owners to licensees.
Historically the United States has been
rather vigorously opposed to compulsory licensing
and has even sought trade sanctions
when other countries have authorized
or even contemplated compulsory licensing.
The United States has, at least on the international front,
been supportive of protecting intellectual property rights.
The fact that the U.S. Trade Representative
has signaled support for a waiver
that is in all likelihood going to be
broader than compulsory licensing,
and potentially more harmful
to innovative American companies,
represents a significant shift in policy.
Intellectual Property advocates are concerned
that the proposed waiver undermines IP rights.
For instance, what happens if the company
that developed the vaccine is not able to recoup
the development costs associated with
getting the vaccine to market in the first place.
And while the waiver is intended
to only be enforced during the pandemic,
any know-how, or trade secret information
that is required to be transferred,
would never be able to be reclaimed
by the innovative company.
That asset would be forever lost.
These and other actions that devalue
intellectual property rights
could have some widespread negative impacts
on pharmaceutical companies going forward.
The necessity of the waiver has also been questioned
based on promises from companies to not enforce
their COVID related patents.
The amount of time that will pass
before the waiver is even approved and implemented,
and after that the amount of time that would be required
for factories and infrastructure to be put in place
to manufacture and deliver vaccines.
For these reasons, the waiver of IP protection
for COVID-19 vaccines has been called largely symbolic.
Is the waiver of the right solution to the problem
of getting vaccines to people who need them?
Is the argued weakening of IP rights worth the waiver?
Especially given the significant questions
about whether the waiver will even make a difference.
Should the WTO have the power to decide whether,
and which patents get enforced?
Join the conversation in the comments below.