U.S. Trade Representative Responds to Letters from Senators Regarding TRIPS Waiver

By Donald Zuhn --

Last week, United States Trade Representative Katherine C. Tai responded to a series of letters sent by a group of Senators regarding a proposal by India and South Africa to waive certain provisions of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in relation to prevention, containment, or treatment of COVID-19.  The most recent letter to Ambassador Tai was sent on October 7, 2021 by Sen. Thom Tillis (R-NC), the Ranking Member of the Subcommittee on Intellectual Property of the Senate Committee of the Judiciary.  Sen. Tillis' letter included as Annexes three prior letters sent to Ambassador Tai:  a May 19, 2021 letter sent by a group of sixteen Senators, a July 14, 2021 letter sent by Sen. Tillis and Sen. Tom Cotton (R-AR), and an April 16, 2021 letter sent by Sen. Tillis (all three letters were also addressed to the Secretary of the Department of Commerce, Gina M. Raimondo).

In their May 19 letter, a group of sixteen Senators* called the Biden Administration's decision to support the waiver of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in relation to the prevention, containment, or treatment of COVID-19 "disastrous," and declared that:

The waiver, which is not limited to vaccines, will do nothing to end this global pandemic.  Instead, it will undermine the extraordinary global response that has achieved historically remarkable results in record time and our nation's global leadership in the technologies, medicines, and treatments of the future.

The Senators also stated that:

It is not surprising that China, India, and South Africa want to steal our intellectual property and medical technology.  What is surprising is that an American president, especially one who claims to be a "jobs" president, would force American companies to give their medical technology and manufacturing processes to foreign adversaries like China [emphasis in original].

In the letter, the Senators posed ten questions intended "to help us better understand this decision to support intellectual property theft and forced technological transfer," and they requested a response to those questions "by no later than June 19, 2021."

In the July 14 letter from Sen. Cotton and Sen. Tillis, the two Senators noted that they had not yet received a formal response to their May 19 letter with answers to their questions, but instead had "received a cursory, perfunctory, and dismissive response from your offices," which the Senators noted "was totally inadequate and failed to respond to congressional oversight."  They asked for a formal reply "by no later than July 31, 2021," and warned that "[f]ailure to give specific answers to our questions . . . will result in us taking appropriate action to ensure congressional oversight of this important matter."

In responding to the Senators' letters, Ambassador Tai indicated in her November 8, 2021 letter that "[t]he Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports a waiver of those protections for COVID-19 vaccines."  She added, however, that "the Biden-Harris Administration is exploring every avenue to coordinate with the global community and is evaluating the efficacy of proposals in multilateral fora, including the WTO, by their true potential to save lives, end this pandemic, and respond to the next one."  Ambassador Tai stated that "[t]he Administration believes strongly in intellectual property (IP) protections, biopharmaceutical innovation, and the importance of safeguarding American innovation from illicit acquisition," but noted that "[t]he decision to support a waiver of IP protections for COVID-19 vaccines reflects the extraordinary circumstances of this pandemic."  Ambassador Tai also contended that "[t]he need for increased vaccine production does not adversely affect American pharmaceutical workers."  The Ambassador's letter closes by acknowledging that although the Administration is committed to continuing to work with WTO members given the extraordinary circumstances of the pandemic, it "will be clear-eyed about potential risks as we enter text-based negotiations."

* Senators Cotton, Tillis, Charles E. Grassley (R-IA), Mike Crapo (R-ID), James Lankford (R-OK), Mike Lee (R-UT), Joni K. Ernst (R-IA), Ben Sasse (R-NE), Dan Sullivan (R-AK), Kevin Cramer (R-ND), Todd Young (R-IN), Richard Burr (R-NC), Roger F. Wicker (R-MS), Marsha Blackburn (R-TN), M. Michael Rounds (R-SD), and Steve Daines (R-MT).

For additional information regarding this topic, please see:

• "U.S. Chamber of Commerce Urges Administration to 'Double Down' on Global Vaccine Distribution," November 3, 2021
• "Is This the WTO Waiver End Game?" July 25, 2021
• "BIO Declaration on Global Access to COVID-19 Vaccines and Treatments and Role of IP," June 24, 2021
• "GOP Legislators Write in Opposition to Proposed TRIPS Waiver," May 16, 2021
• "Population of Patents at Risk from Proposed WTO Patent Waiver," May 12, 2021
• "Sen. Daines Urges Biden Administration to Withdraw Support for COVID-19 IP Waiver," May 12, 2021
• "Pfizer CEO Pens Open Letter on COVID-19 Vaccine IP Waiver," May 10, 2021
• "If the Devil of the WTO IP Waiver Is in the Details, What Are the Details?" May 9, 2021
• "The Road to Hell Is Paved with What Everybody Knows," May 6, 2021
• "BIO & IPO Issue Statements on Biden Administration's Support for Proposed WTO Waiver," May 6, 2021
• "Biden Administration Supports Waiver of IP Protection for COVID-19 Vaccines," May 5, 2021
• "Suspending IP Protection: A Bad Idea (That Won't Achieve Its Desired Goals)," April 26, 2021
• "Sen. Tillis Asks Biden Administration to Oppose WTO Waiver Proposal," April 21, 2021
• "IP Organizations Support Continued Opposition to Waiver Proposal," April 5, 2021
• "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
• "IPO Sends Letter on IP Law and Policy to President-Elect and Vice President-Elect," January 4, 2021

Comments

[skeptical]

In other words, the Executive Branch informs the Legislative Branch to take a flying leap, and will regurgitate their desired narrative when they feel like it, and only to the extent that they feel like it.

Are there any "D's" out there that still think that 45 was more authoritarian than 46?

Mean tweets do not count.

[Chester]

https://election.princeton.edu/2020/06/04/trumps-authoritarianism-checking-the-2017-checklist/

[kotodama]

@skeptical

So less than a full set of the Senate IP Subcommittee minority, plus a smattering of minority Judiciary Committee members and some other random R Senators, who all told don't amount to a majority in their own party, let alone in the entire Senate, is now equivalent to [checks notes] the entire "Legislative Branch"? Can I subscribe to your political science newsletter?

[skeptical]

Hey Chester, did you read through that article?

There's some serious misrepresentations and s t r e t c h i n g to reach those check marks (ESPECIALLY in view of the current administration).

That piece actually proves my point: 46 is FAR MORE authoritarian than 45 ever was.

[Greg DeLassus]

“[T]he Senators posed ten questions intended ‘to help us better understand this decision to support intellectual property theft and forced technological transfer…’”

It should be short work answering those questions. No U.S. official is supporting IP “theft” (what does that word even *mean* in the context of IP?), nor forced tech transfer. The whole premise of the exercise is misbegotten, so there is nothing for the senators to understand.

[skeptical]

kotodama,

Did you see where I stated "entire?"

Put your strawman away please, and try to grasp the actual point presented.

Mr. DeLassus, THAT it may indeed be a matter of "short work," makes it all the more galling that the Executive Branch has chosen its path. You too seem to be misapplying what is "misbegotten" here - no doubt in your effort NOT to look at the party that you would rather support.

These are signs of self-delusion.