US Supports Patent Waivers for COVID-19 Vaccines

In a statement released on Wednesday, the 5^th of May, 2021, the United State Trade Representative, Katherine Tai, has said the US will now move forward with international discussions to waive the intellectual property protections for COVID-19 vaccines. “This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures. The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines,” Tai said.

The US had previously opposed a World Trade Organization (WTO) proposal originally submitted by India and South Africa to the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) on the 2^nd of October, 2020. The proposal called on the WTO members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19. A number of developing countries supported the proposal, arguing that it would allow them to rapidly produce their own generic vaccines, rather than wait months or years for sufficient doses.

In response to this move by the US, the Pharmaceutical Research and Manufacturers of America (PhRMA) have also released a statement claiming that this decision by the Biden-led administration will backfire because allowing more manufacturers to begin manufacturing vaccines would spark new competition for limited ingredients, slow down existing production and even foster the proliferation of counterfeit vaccines. The PhRMA also stated that the decision has the political and economic effect of handing over America’s innovations to countries looking to undermine its leadership in biomedical discovery.

Intellectual Property Rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. The waiver of these rights in respect of the vaccine therefore suggests a grant of some sort of compulsory license by the manufacturing companies. “With this waiver”, said an advocate, “we can share vaccine recipes, largely developed with taxpayer dollars, while assuring reasonable royalties to American manufacturers.”

Tai, who is attending this week’s WTO sessions in Geneva, cautioned that the discussions to proceed with negotiations over the waiver’s text would “take time.” Therefore, the final agreement could differ significantly from the proposal initially introduced in October last year.

The proposed waiver does not sit well with the American manufacturers, and understandably so! However, if a consensus is reached in respect of the waiver, then the American manufacturers of the vaccines might  have to consider issuing compulsory licenses to manufacturing companies in developing countries. Recourse would have to be made to the Declaration on TRIPS Agreement and Public Health adopted on 14^th  of November, 2001 by the member countries which bestows on each member the right  to not only grant compulsory licenses, but also gives them the freedom to determine the grounds upon which such licenses are granted.

Hopefully, the interests of the American manufacturers, who undoubtedly deserve the protection of their investments, research, development and intellectual property rights to the vaccines on the one hand, and the interests of developing countries who urgently need the vaccines on the other hand, can somehow meet at a midpoint that will be somewhat beneficial to all.