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« BIO & IPO Issue Statements on Biden Administration's Support for Proposed WTO Waiver | Main | IPO Behind the IDEA Series Webinar »

May 06, 2021

Comments

Well said Kevin. Hard to believe there is so much resentment against a patent system that has allowed innovative companies to form and thrive to the point that they could make a vaccine to protect the world against a pandemic in record time. I hope that these recent efforts do not cause these same companies and brilliant minds to lose faith in the system.

Small - but absolutely critical - distinction:

This is NOT about a 'patent' waiver.

The underlying goal here is NOT the patents, but rather the OTHER IP of Trade Secrets and implementing know how.

"The terms of the press release do not say that there should be a waiver of patent protection (which was the original impetus and justification for the waiver as proposed by India and South Africa last October..."

This is not an accurate characterization of the Oct waiver proposal. The proposed text called for "[t]he obligations of Members to implement or apply Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement... to... be waived... ." Section 1 of TRIPS is copyrights; section 4 is industrial designs; section 5 is patents; and section 7 is trade secrets. The call, all along, in other words, has been for a relaxation regarding multiple forms of IP, not just patents.

"To the extent that the suspension or waiver of rights is limited to patents, the effects could amount to no more than virtue signaling... But as annoying as this might be, there is a greater danger... [T]he focus of the waiver that has evolved, is to include all intellectual property."

I think that it is important to think carefully and clearly here. Waiver of *which* patents, and of *which* other IP. I doubt that Pfizer, Moderna, J&J, or any of the other vaccine makers really have many trade secrets inside the borders of India's sovereign jurisdiction, or South Africa's, or inside the borders of any other nation that is likely to act in reliance on a TRIPS waiver by suspending trade secret protection.

Meanwhile, a waiver of trade secret protection inside India's sovereign borders does not affect trade secrets held inside the sovereign borders of the U.S., or Switzerland, or Germany, etc. In order for those trade secrets to be at risk, there would need to be legislative changes in CH, DE, US, etc. Indeed, in the case of US trade secrets, not only would there need to be changes to US law (changes that *this* Congress would be vanishingly unlikely to enact), but also changes at the NY state level (for Pfizer), the IN state level (for Eli Lilly), the PA state level (for GSK), etc. None of this is ever going to happen, which means that the real world danger to the security of trade secrets held by the relevant market actors here is essentially the same as the danger posed to those trade secrets by a giant meteor loaded with laser gun-wielding monkey assassins.

It is really easy to overstate the significance of a TRIPS waiver here. To a first order approximation, I expect that the waiver will have no effect whatever on the ultimate course of vaccination or the ultimate bottom line of any of the relevant market actors. This is a PR move, not a substantive event in IP law.

"Meanwhile, a waiver of trade secret protection inside India's sovereign borders does not affect trade secrets held inside the sovereign borders of the U.S., or Switzerland, or Germany, etc"

Yeah, no.

Think about it. Your remedy for a violation of Trade Secrets (think full sanctioned industrial espionage) in the face of a US committed waiver would be....

Greg: you are correct, of course; what I meant to say was that the focus, rhetoric, and justification of the waiver proposal was initially patents, but the proposal encompassed all the types of IP you listed.

Thanks for the comment

On the other hand, Greg, if there is a waiver by the US of the TRIPS provisions that includes trade secrets, won't there be pressure for US companies to disclose trade secrets necessary to make vaccines? So the effect and scope of any waiver will likely be far broader than countries like India.

Where it will get interesting is if Germany continues to oppose the waiver, and BioNTech refuses to disclose. How do we get the necessary trade secrets disclosed?

“[I]f Germany continues to oppose the waiver, and BioNTech refuses to disclose. How do we get the necessary trade secrets disclosed?”

How indeed? Like I said, there is no point getting too exercised about the waiver. It is a PR gesture, not a substantive legal change with any enforceable effect.

No trade secrets are going to be disclosed after the waiver unless the company in question: (1) wants to make the disclosure; or (2) gets sloppy about protecting the trade secrets. Of course, those are exactly the same circumstances in which trade secrets get disclosed before a TRIPS waiver. The waiver will not actually change anything.

“[T]his ‘moveable feast’ of policy rationales illustrates the political fact that the aim and goal of this and other proposals by India, South Africa, and other countries is to escape the TRIPS requirement for recognizing and enforcing IP protections, imposed as part of the requirements for WTO membership.”

I think that this is correct. Many “developing world” countries signed up for WTO membership back in the more optimistic days of the Washington consensus, back when we thought that we had cracked the code to rapid economic growth & development. The idea back then was that with sufficient political will—aided by the right Chicago-trained experts—any nation could grow into the G20 league with a two decade lead time. Therefore, why not commit oneself to the gradual implementation of a set of G20-standard IP laws as the price of WTO admission. By the time those laws had to be implemented—it was thought—one would already be far enough along the development road that it would make sense to have such laws in place anyway.

Two decades later, however, we see that: (1) the Chicago boys overpromised and underdelivered; & (2) the sorts of IP laws that best serve a G20 economy are not the same sort that best serve a “bottom billion” economy. It is time that we acknowledge as much and renegotiate TRIPS accordingly. Nobody—neither the wealthier countries nor the poorer ones—really benefits from the global imposition of a one-size-fits-all view of IP laws.

Greg: I think that is what the waiver proposal - like the Doha Declaration before it - is trying to do. And like many international agreements it looks like there needs to be an accommodation to the realities - political and economic - of the "bottom billion." And also need to realize that there will be some in countries comprising the BB that benefit even though they shouldn't - just the entropy of any complex system.

Thanks for the comment

I wonder — not entirely sarcastically — if Mr. DeLassus would find it any easier to swallow if the “movable feast” were clothed in the rhetoric of “Equity,” and stated to be a ‘reparation’ of sorts to brown people (and ‘poor’ people) of the world for the (limited effect) of Trade Secrets and know-how on the platform of the (Trumpian) single fastest ever vaccine development BY providing a full IP (and not merely patent) waiver.

Yes, an enforced full waiver would be a taking.

Yes, the current administration has the money supply printing presses running at full screaming level (so there is no qualms about printing as much “takings money” as necessary, is there?).

Yes, the global pandemic is “the worst thing ever” (since the Spanish Flu), and would be a “one time” event, certainly not changing “everything we know, and everything we do” in regards to biotech innovation.

Yes, there is a ‘moral imperative’ to do EVERYTHING (cue multiple stories of how even the Pope is speaking out).

I keep on seeing people SAYING “it’s not needed,” and “it’s not going to happen,” and both come across as rather empty platitudes to momentum of both World Opinion AND the Biden administration full embrace of “Equity.”

Yes, the elephant in the room is being greeted by ostriches putting their heads in the sand, as the camel’s nose is ALREADY in the tent.

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