TAPP Reiterates: TRIPS Waiver Petition Must Be Rejected to Protect American IP Rights!

In October 2020, India and South Africa petitioned the World Trade Organization (WTO) to suspend certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in order to nullify intellectual property (IP) protections for COVID-19 treatments, vaccines, and diagnostics on the premise that IP rights were potential barriers to research and development, public-private collaborations, and access to COVID-19 products.

At the Trade Alliance to Promote Prosperity, we have written about this issue before, and TAPP is part of a coalition of more than 40 organizations that has written to U.S. Trade Representative Katherine Tai and U.S. Commerce Secretary Gina Raimondo to express opposition to undermining intellectual property protections with a TRIPS waiver.

Most concerning to TAPP right now: The World Trade Organization (WTO) Director General has officially introduced a draft TRIPS waiver which is meant to be presented for approval of the full WTO membership ahead of the organization’s ministerial conference taking place June 12-15.

If adopted, the waiver would authorize foreign countries such as Russia and India to seize the patents and clinical data of American innovators and scientists. Openly hostile nations that are purportedly not part of the TRIPS waiver scheme, like China, could easily obtain the intellectual property through back-channel routes, including through trading partners that are party to the waiver.

At TAPP, we have said that we believe that countries which have historically supported significant intellectual property infringement and theft have been using the COVID-19 pandemic opportunistically to advance their longstanding international trade policies. Considering the current state of the pandemic, this appears abundantly clear.

The proposed TRIPS waiver is not needed.

The supply of COVID-19 vaccines is not an issue. Biopharmaceutical companies are on track to produce more than 20 billion COVID-19 vaccine doses in 2022, which is more than enough to vaccinate the entire population of planet Earth.

Indeed, with a global surplus of vaccines, many doses have already been destroyed. African nations cannot distribute COVID-19 vaccine donations fast enough and have asked that all COVID-19 vaccine donations to Africa be paused. Disparities in vaccination rates can be attributed to deficiencies in administration and infrastructure and to cultural differences—not to IP barriers. With new orders for COVID-19 vaccines having stopped coming in, The Serum Institute of India, the world's largest vaccine manufacturer, has stopped producing COVID-19 vaccines.

IP protections enabled biopharmaceutical companies to respond to the pandemic with safe and effective vaccines at warp speed. Research entities leapt into action because they had assurances that their proprietary technology would be protected.

The proposed TRIPS waiver is dangerous.

The proposed TRIPS waiver would undermine the IP protections that underpin the development of new medicines and therapeutics and would also undermine American leadership on biomedical innovation. American companies develop two-thirds of new medicines, largely because of the strength of U.S. IP protections. Those IP protections must be defended to maintain American global competitiveness.

Opposition to the proposed TRIPS waiver is broad.

People who oppose the proposed TRIPS waiver include Former German Chancellor Angela Merkel, Belgian Prime Minister Alexander De Croo, French President Emmanuel Macron, European Commission President Ursula von der Leyen and Executive Vice President Valdis Dombrovskis, U.S. Senate Judiciary Committee members Sen. Thom Tillis (NC), Sen. Tom Cotton, and Sen. Marsha Blackburn, U.S. House of Representatives Ways & Means Committee Ranking Member Rep. Kevin Brady, U.S. Senate Finance Committee Ranking Member Sen. Mike Crapo, U.S. Senator Chris Coons, U.S. Food and Drug Administration Commissioner Scott Gottlieb, former U.S. Commerce Secretary Gary Locke, former Vermont Governor Howard Dean, and many others from across the political spectrum.

Unfortunately, the U.S. Trade Representative continues to express support of a TRIPS waiver through official communications and press releases—indeed, the agency has said in a report (2022 Special 301 Report) that officials there are working hard to facilitate a TRIPS waiver.

If implemented, the TRIPS waiver would set a dangerous precedent. Therefore, TAPP continues to call on U.S. Trade Representative Katherine Tai to change course and reject the urge to undermine American IP rights.