IP Organizations Support Continued Opposition to Waiver Proposal

By Donald Zuhn --

Late last month, a group of intellectual property organizations sent a letter to members of Congress and officials at the Patent and Copyright Offices to express their support for the United States' continued opposition to the TRIPS waiver proposal being discussed at the World Trade Organization (WTO).

The letter's signatories included the American Intellectual Property Law Association (AIPLA), Intellectual Property Owners Association (IPO), Licensing Executives Society (USA and Canada), Inc. (LES USA-Canada), and New York Intellectual Property Law Association (NYIPLA).  The group's letter was addressed to Sen. Patrick Leahy (D-VT), Chairman of the Senate Subcommittee on Intellectual Property; Sen. Thom Tillis (R-NC), Ranking Member of the Subcommittee on Intellectual Property; Rep. Henry C. "Hank" Johnson (D-GA), Chair of the House Subcommittee on the Courts, Intellectual Property, and the Internet; Rep. Darrell Issa (R-CA), Ranking Member of the Subcommittee on the Courts, Intellectual Property, and the Internet; Drew Hirshfeld, Performing the functions and duties of the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office; and Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office.

The organizations begin their letter by declaring that they "strongly support equitable, widespread, and successful distribution of vaccines, medicines, diagnostics, personal protective equipment, and other measures necessary to meet the challenges of COVID-19," and by noting that the intellectual property rights of their members "have fueled the innovation that has allowed us to combat COVID-19."  The letter also points out that IP system "will continue to fuel the next generation of solutions."

With respect to the WTO waiver proposal (which we discussed here), the group argues that the proposal "incorrectly portrays IP as a barrier to rapid innovation, R&D collaboration, and ample manufacturing of COVID-19 technologies," which the organizations state is contrary to the experience of their members.  The organizations also state that they "know of no data to suggest that patents and other IP rights are hindering vaccine development or delivery."  With regard to IP rights related to testing, treatments, and personal protective equipment, the group reiterates that "[w]e are not aware of any examples where IP has been used to limit access to COVID-related technology ‒ rather innovator companies have partnered and shared IP to create tools to address this pandemic."

The letter also notes that the manufacturing of COVID-19 vaccines is a complicated process, and cautions that "[p]oor quality vaccines being produced by underqualified manufacturers could have extreme negative consequences."

The organizations conclude their letter by arguing that "should the proposed TRIPS waiver be implemented, it would have an immediate chilling effect on their continued research and collaboration needed to overcome, for example, new variants of the virus, to create vaccines for children, and to develop better delivery mechanisms."  The group therefore "urge[s] the U.S. to continue its opposition to the TRIPS waiver proposal."

For additional information regarding this topic, please see:

• "Industry Coalition Supports Continued Efforts to Oppose Waiver Proposal," March 29, 2021
• "BIO and PhRMA Urge Biden Administration to Oppose Proposed WTO TRIPS Waiver," March 11, 2021

Comments

[skeptical]

Question STILL awaiting a cognitive answer:

If a global pandemic is NOT the type of emergency for waiver, what in the world would constitute a type of emergency?

[Greg DeLassus]

Surely if any public crisis could qualify as a reason to invoke the TRIPS compulsory licensing provisions, the COVID-19 pandemic qualifies. I am still, however, hard pressed to understand what the folks agitating for the invocation hope to achieve. The IP around (e.g.) Moderna’s vaccine or BioNTech’s vaccine was never brought into the BR national phase, nor the IN national phase, nor the ZA national phase (etc). None of those countries require IP waivers to make use of these vaccine technologies inside their own borders. What domestic benefit do they expect to obtain from the invocation of the TRIPS provisions?

[skeptical]

Perhaps, Greg, export from a region wherein such items are in force?

[Karl P. Dresdner, Jr., PhD, US Patent Agent 63,319]

I support the views of the IP organizations whichsent a letter to members of Congress and officials at the Patent and Copyright Offices to express their support for the United States' continued opposition to the TRIPS waiver proposal being discussed at the World Trade Organization (WTO).

Importation of foreign made vaccines into the USA is currently an act of infringement if US vaccine creators have US IP or in their own countries if their is a foreign national patent in the foreign country.

US creators of vaccines have option to distribute the vaccine (such as for COVID viruses) to any country needing it.

TRIPS Waiver of US IP by foreign countries is simply a greedy excuse for them to sell a copy-cat foreign country vaccine in the US.

Its totally obvious what is fair and moral here.The refusal by US to accept waiver of the US IP is simple to justify and protects the US economy.

For the US to go along with the TRIPS waiver also sets a dangerous precedent for ignoring US IP if this is a precedent situation.

In the past (re AIDS virus drugs) big US Pharma has given away drugs to foreign countries so that is an option that is affordable to such with out negating the importance of US IP.

[skeptical]

Karl,

What type of crises WOULD invoke a proper waiver?

Any?

If none, then why is there a waiver provision at all?

[Greg DeLassus]

“TRIPS Waiver of US IP by foreign countries is simply a greedy excuse for them to sell a copy-cat foreign country vaccine in the US.”

Karl, you misunderstand what is being requested here. The text of the Indian/South Africa proposed waiver text is found at the URL below.

They are asking for permission to waive IP inside their own borders, not inside the US borders. Indeed, it would be futile for them to make a request of the TRIPS authority to waive US IP rights, as both India & South Africa both know that the TRIPS authority has no power to make such a waiver.

If they wanted US IP rights to be waived (a request that they are not making), they would need to petition the US Congress, not the TRIPS authority.

https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True