Waiving IP Rights: The Wrong Path to the Right Goals

By Daniel J. Staudt
June 15, 2021

“If the U.S. is sincere and serious about ending the pandemic as soon as possible, leveling the IP playing field internationally, and pursuing a worker-centric trade policy, waiving IP rights is the exact wrong way to go.”

https://depositphotos.com/6496641/stock-photo-looking-at-the-opinion-section.htmlWaiving intellectual property (IP) protections for COVID-19 vaccines will hinder rather than further three meritorious objectives of the current U.S. Presidential Administration: ending the pandemic as soon as possible, leveling the IP playing field with China, and pursuing a worker-centric trade policy. Ensuring equitable, widespread, and successful distribution of vaccines across the globe to meet the challenges of COVID-19, ending the erosion of U.S. IP at the hands of China, and putting Americans back to work are goals that most of us in the U.S. share. An examination of the facts, however, demonstrates that waiving IP rights in the name of COVID-19 relief undermines each of these three U.S. government goals.

Waiver Would Hurt, Not Help

In terms of ending the pandemic as soon as possible, the Washington Post got it right in its May 4 editorial when it stated, “Sharing doses and know-how is better than stripping patents.” It is noteworthy that, during this global debate over whether IP protections should be waived, there have been no instances identified where IP has been used to limit access to vaccines or other COVID-related technologies. In contrast, there are many examples of innovator companies from a wide array of industries who have partnered and shared IP to create testing, vaccines, and therapies to address this pandemic. In fact, IP has enabled this innovation and facilitated this collaboration by providing the incentives that have enabled innovators to devote the resources, technical knowledge, and know-how necessary to counter the pandemic. As a result, our innovative industries have been able to create vaccines and other measures to fight the pandemic. Should an IP waiver be implemented, however, there would not be a stable framework in place to provide confidence to innovators that they can take the necessary risks associated with their inventions and creations as we continue to combat COVID-19. In fact, a waiver would have an immediate chilling effect on continued research and collaborations that are needed, for example, to overcome new variants of the virus, create vaccines for special populations, and develop new tools to help defeat the pandemic and for future vaccine development for other infectious deceases.

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Waiver Would Be a Windfall for U.S. Competitors

A second stated goal of the Administration is to become more competitive with countries such as China. To that end, the Senate just passed legislation totaling well over $200 billion that’s designed to strengthen U.S. competitiveness against China. However, to achieve that goal, the United States needs to protect our IP against forced tech-transfer from foreign governments, not give it away. Providing a windfall to U.S. competitors at the same time we are purportedly trying to level the playing field with regards to IP not only makes a farce out of U.S. attempts to “get tough,” but it also sends a dangerous message – that the United States is willing to cave to global pressure and waive Word Trade Organization IP commitments, even if the efficacy of the waiver is not supported by the facts. Unfortunately, we have no reason to think that will be the last of the calls to waive such commitments.

Waiver is Not Worker-Centric

As a third matter, waiving IP rights will subvert the worker-centric trade policy that this Administration has indicated it wants to pursue. The real challenges to the global distribution of vaccines are not related to IP, but include the complexity of the manufacturing process, supply chain issues, and export controls. The Europeans are talking about the real issues, and thus they are poised, instead of the United States, to lead on the solutions. Specifically, two key points of the recent EU proposal to WTO to address the pandemic call on governments to ensure that COVID-19 vaccines, treatments, and their components can cross borders freely, and encourage producers to expand their production. The proposal does not call for a waiver of IP rights under the Agreement on Trade-Related Aspects of IP Rights (TRIPS). A full and frank discussion of the real challenges – with workers themselves – must also occur in in this country in order to support the continued efforts of vaccine manufacturers to identify, and engage with, new potential partners to create even more manufacturing capacity. Only with such discussions can we truly address the challenges of global distribution of high-quality vaccines.

Ultimately, are we looking for slogans or real solutions? If the United States is sincere and serious about ending the pandemic as soon as possible, leveling the IP playing field internationally, and pursuing a worker-centric trade policy, waiving IP rights is the exact wrong way to go. Let’s get back on track and focus on how best to address the actual challenges to global production and distribution of vaccines. The facts can set us on the right path.

Image Source: Deposit Photos
Image ID: 6496641
Copyright: stuartmiles 

The Author

Daniel J. Staudt

Daniel J. Staudt is current President of the Intellectual Property Owners Association (IPO), an international trade association representing members that own, or are interested in, intellectual property (IP) rights from over 125 companies and 30 countries. Staudt is a graduate of the University of Dayton School of Law (1990) and VP, Chief IP Counsel at Siemens Corporation, an IPO member company.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 5 Comments comments. Join the discussion.

  1. Anon June 15, 2021 8:37 am

    This article is simply incorrect on most every single point it tries to make.

    Each point has already been shown to be false in view of prior comments on this topic over the course of now many articles.

    Notably, confusing IP waiver as being “only patents” (while alluding to “sharing know-how”) misses the major point of what waiver entails.

    The notion that the EU counter resolves “real problems” is a farce, given that total shots-in-arms is a Zero Sum game.

    Perhaps the only thing this article got correct was the chilling effect on future innovation – but even that point is not developed, and relies more on fear-mongering than a developed storyline.

    As this comes from a leader of a major trade organization, the high level of tone-deafness (at this point of the conversation) makes this appear to be nothing more than a self-serving propaganda piece and in no way provides anything new that would either help resolve the world pandemic nor move the needle on the larger discussion of total (yes, read that as more than just patents) IP waiver.

  2. Pro Say June 15, 2021 9:26 am

    I’ll say it again:

    Easy to give away that which belongs to another.

  3. erfinder June 15, 2021 10:46 am

    The PTO should EXTEND IP rights for the approx 2 years, that business virtually ground to a halt.

  4. erfinder June 15, 2021 11:36 am

    And if the PTO had even a modicum of conscience & equity, they would return the rights to ALL patent owners whose patents the PTAB had invalidated, and further extend those rights by the number of years they were invalidated.
    I know that would never happen, because big Corporations, with BIG $ have a license to steal using the PTAB as a convenient vehicle. This corruption, “boggles the mind”

  5. erfinder June 16, 2021 10:59 am

    The PTO is driven by inventors and their inventions! IMHO, all these discussions, meetings, seminars, manuals & books, IP lawyers, laws etc. are IRRELEVANT . . . if inventors STOP inventing! PTO corruption is “digging it’s own grave”.

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