Thursday, 13 May 2021

Biden Administration's Support of the So-Called WTO Waiver of COVID-19 Related IP

There’s been a lot of commentary going around regarding the Biden Administration’s support of South Africa and India’s proposed WTO waiver of COVID-19 related IP.  I thought I’d weigh in with maybe a bit of a slightly different angle [These are my personal views and certainly do not represent other folks on the blog.].  The Biden Administration’s support of the waiver is, mostly, about politics.  Many have written about how a WTO waiver of COVID-19 related IP under TRIPS, for a myriad of reasons, will not result in getting the vaccine or treatments to people in India or other countries who may need it.  For example, please see Professor Ana Rutschman’s excellent co-authored post, here, and Professor Jorge Contreras’ excellent post, here.  I don’t 100% agree with that general position because I frankly do not have enough information about the global patent landscape, particularly with respect to devices used to treat people with COVID-19, or global manufacturing and distribution capabilities.  I am also uncertain because some say it will help.  However, if I am in a position where I am unsure of a decision and millions of human lives are in the balance in a global pandemic, I am going to err on the side of saving human lives.  I think most Americans would agree with me.  I could be wrong. 

From a practical perspective, the patent waiver is, in my mind, political for at least two reasons.  First, the United States' standing in the world has sunk because of Donald Trump’s presidency.  In my humble opinion, he amplified some important issues, but took us down a path of challenging and alienating our allies.  Attempting to make COVID-19 treatments and vaccines available to people around the world is a great way for the United States to exercise so-called “vaccine diplomacy.”  And, let’s face it: the United States needs India on our side.  Biden is trying hard to prove that “America is back.”  That we don’t just give a crap about ourselves, but want to be there to support the rest of the world.

Second, I am doubtful the waiver will ever be adopted or fully implemented.  Why?  The United States' support for the waiver, in my mind, is about creating negotiation leverage.  The pharmaceutical industry will fight tooth and nail for every step protecting their business model, and one effective way to increase access is to create bargaining leverage through policy levers.  The United States has been dealing with a drug pricing crisis before COVID-19, and it hasn’t gone away.  Yes, I am very grateful to the pharmaceutical industry for the COVID-19 vaccines, but as others have pointed out, they have been well-compensated by the U.S. government and others who can pay.  The end result from all of this should be increased cooperation to manufacture and distribute vaccines and treatments, and the setting of a reasonable price for the vaccines and treatments.  Can you guess who is still going to make a lot (MORE) money?  Finally, do I think this is going to result in a world where people will no longer see human health innovation as something to be invested in without the potential of sufficient profits?  A world where patent protection will be waived all the time?  C’mon.  I seriously doubt it.

So, to sum up: Let’s save as many lives as we can and get the world economy back on its feet; Let’s continue to be a strong influence and partner supporting democracy and freedom throughout the world; and Let’s reach a compromise fast--protecting everyone's interests to the best extent possible--on how to move forward expeditiously to save lives.  

1 comment:

Anonymous said...

Interesting post. I agree on several points, notably on ethical concerns. But there is an aspect for which I struggle to find a satisfactory answer. The COVID vaccines involve technologies (hence probably patent claims) that have a plethora of applications. I would not be surprised to see applications even very far from COVID itself. I had a glance at the BionTech pipeline ( The mRNA vaccine technology is currently studied for medical applications spanning cancers (many types), HIV, influenza and tubercolosis. I concede I do not know what the differences are between the candidate products in development for each application. But I plausibly expect a certain degree of overlap, in particular with respect to the presence of the renown nanolipid particles filled with reproducible and repeatable amounts of mRNA. Now, if I, as patentee, am (politically) obligated to transfer know-how with respect to this crucial element to guarantee an effective and safe implementation of a compulsory license for COVID vaccines, this will inevitably impact also the other applications (i.e. other than COVID) of the technology. For companies like BionTech that are highly focused on a single technology, this will imply loosing most of its business advantage over potential competitors and a possible dramatic impact on company appeal for investors. How can this unintended effect be properly "monetized" when establishing a fair price associated with the license? As many have already noted, once know-how leaves your house, it is gone. Forever. Do I miss anything?