International Academics Push for TRIPS COVID IP Waiver Hold-Outs to Drop Opposition

By Eileen McDermott
July 14, 2021

“This is in line with the commitment in the TRIPS Agreement to balance the rights of IP holders in high- income countries with the promise of technology transfer to lower- and middle-income countries. It is time to fulfil this promise and, in so doing, to end the pandemic.” – Academic Open Letter in Support of the TRIPS Intellectual Property Waiver Proposal

https://depositphotos.com/443749080/stock-illustration-covid-vaccine-implementation-herd-immunity.htmlOne-hundred-twenty-four professors and academics from around the world have penned an open letter supporting India and South Africa’s proposed waiver of certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which they claim will help to combat the COVID-19 pandemic.

According to a press release about the letter, the United Kingdom, Ireland, Australia, Brazil, Japan, Norway, Switzerland and the EU continue to oppose the waiver proposal. The United States expressed its support for waiver in May. Over the last several weeks, Europe has doubled down on its opposition to the proposal in ongoing talks.

The academics’ letter calls the waiver proposal “a necessary and proportionate legal measure towards the clearing of existing intellectual property barriers to scaling up of production of COVID-19 health technologies in a direct, consistent and effective fashion.” While they acknowledge that other factors contribute to lack of access to vaccine and COVID-19 technologies, “IP rights, and monopolies over tacit and informal information, are also implicated in the current lack of global capacity for vaccine production and other health technologies, as well as in enabling their inequitable distribution.”

The letter further explains that the strategies used so far to address inequities in vaccine distribution “have focused on solutions which build on the existing IP system, such as the World Health Organisation (WHO) COVAX initiative or voluntary licensing provisions.”  These solutions are limited and their success has not been sufficient, says the letter:

We note that as of June 2021 the voluntary COVAX donation scheme has delivered only 90m out of a promised 2bn doses. Pharmaceutical companies who hold relevant IP rights have also failed to engage with the WHO’s voluntary COVID-19 Technology Access Pool (C-TAP) of IP and know-how.

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Additionally, “in light of the considerable public financing of COVID-19 vaccine research, development, production and purchase, claims of inviolability of private IP monopoly rights cannot be justified.” While the academics concede that the IP system has failed in the past to create incentives for vaccine development, government funding has greatly mitigated that risk with respect to COVID-19 vaccines, they claim.

With respect to existing provisions of TRIPS that are meant to address a scenario like the COVID-19 pandemic, they are not effective due to patent thickets and data exclusivity rules that make it impossible for anyone else to produce the technology. The letter calls on governments to urge IP holders to disclose trade secrets and other undisclosed information in order to build local and regional manufacturing capacity. “There are precedents for this, including US production of penicillin in WWII in which the US government oversaw the necessary pooling of technology and knowledge by companies and universities to rapidly increase penicillin production,” the letter explains.

It concludes:

This approach must also encompass other steps, including: global co-ordination of supply chains; streamlining regulatory approval processes and sharing exclusive data from regulatory dossiers; and investment in the WHO’s C-TAP and the mRNA technology transfer hub in South Africa.11 The TRIPS waiver will thus facilitate the technical resilience of lower- and middle-income countries in view of present and future pandemic action and preparedness. This is in line with the commitment in the TRIPS Agreement to balance the rights of IP holders in high- income countries with the promise of technology transfer to lower- and middle-income countries. It is time to fulfil this promise and, in so doing, to end the pandemic.

Some of the U.S. signatories to the letter include Professor Margo Bagley, Asa Griggs Candler Professor of Law, Emory University School of Law; Prof Robert Howse, Lloyd C. Nelson Professor of International Law, NYU School of Law; Christopher Morten, Associate Clinical Professor of Law, Columbia Law School; and Professor Madhavi Sunder, Professor of Law, Georgetown Law, Georgetown University; and Sean Michael Fiil-Flynn, Director, Program on Information Justice and Intellectual Property (PIJIP), American University Washington College of Law.

Fiil-Flynn commented in a statement:

This statement of leading scholars furthers the interests of researchers by confirming that access to all intellectual property – including copyright on treatment and vaccine algorithms and software – may be needed and to tackle the pandemic and should be included in the waiver.

 

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The Author

Eileen McDermott

Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA), chiefly overseeing the editorial process for the Association’s twice-monthly newsletter, the INTA Bulletin. Eileen has also served as a freelance editor for the World Intellectual Property Organization (WIPO); as senior consulting editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Managing Editor and Editor-in-Chief at INTA from 2013 to 2016; and was Americas Editor for Managing Intellectual Property magazine from 2007 to 2013.

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 11 Comments comments. Join the discussion.

  1. Greg DeLassus July 14, 2021 7:05 pm

    While the academics conceded that the IP system has failed in the past to create incentives for vaccine development, government funding has greatly mitigated that risk with respect to COVID-19 vaccines.

    This is a howler of a meritless assertion. We know now that both Pfizer and ModeRNA had assembled their vaccines before a dime of government money arrived for the effort. It is really easy to toss around assertions like this, but only if you do not care about making yourself look foolish and innumerate.

    The academics’ letter calls the waiver proposal “a necessary and proportionate legal measure towards… scaling up of production of COVID-19 health technologies…”

    Maybe once this was true, but it becomes less true with each passing day. I suspect that we are already past the point where such a waiver could make any appreciable difference. The ground has shifted under these academics’ feet in the time it has taken them to draft their statement.

  2. Anon July 14, 2021 7:28 pm

    That “tacit and informal information” is decidedly NOT patents and decidedly IS the real thrust — exactly as I have been pointing out all along.

  3. Pro Say July 15, 2021 9:49 am

    “professors and academics”

    Easy to take away that which belongs to another.

    Are these folks willing to give up their ivory tower paychecks to help pay for vaccines?

    Of course not.

  4. Anon July 15, 2021 10:39 am

    It continues to be interesting watching the split between deep Liberal Left ideologies and fervent Big Pharma self interests (as Greg is caught in the middle between the two).

  5. BP July 16, 2021 12:14 pm

    So many law professors, readers or lecturers and too few scientists and engineers with active supply chain, production, QC and distribution experience.

    One approach is simply infringe and deal with the consequences later, if any. I am not aware of any laws that “prevent” infringement, most laws deal with the consequences of infringement.

    Arguing that IP rights are for the public good does not carry too well to trade secrets (secrets existed before any law or nation was ever in existence).

    Are they looking to force people to divulge secrets?

    Cooperation is key. How to get there? And, as to the WHO, certainly they made gross errors on their own accord, like gross ignorance (and arrogance) as to dismissing (for months) the airborne route because they would not cooperate with or even listen to top scientists and engineers.

    The WHO is not the model body for cooperation. At best, the WHO will stand as an example for the future of what not to do. Clearly, the WHO needs to take responsibility and move beyond its politics and arrogance to be the “World Health Organization”, one that foresees and plans for the inevitability of pandemics.

  6. Anon July 16, 2021 1:06 pm

    Arguing that IP rights are for the public good does not carry too well to trade secrets (secrets existed before any law or nation was ever in existence).

    Are they looking to force people to divulge secrets?

    Yes. Absolutely. Just look at the first sentence of the second paragraph.

    Hence my (repeated) notes as to what the ‘real aim’ has been.

  7. BP July 16, 2021 2:15 pm

    Anon, surely a sad state of affairs.

    TRIPS, like Section 230, are pre-Big Ad (antitrust violating invaders of privacy). The Big Ad “thinking” spreads like a virus through lobbying $ and throwing $ at “academics” and “think tanks”.

    Government collection of medical records in partnership with the other antitrust violating invaders of privacy, health insurance companies (no friends of pharma), want us to understand that you own nothing, not your thoughts, not your body and not your health information.

    The academics’ “you own nothing” model is quite extreme, enough to raise suspicion. Did I miss their individual conflict of interest disclosure statements?

  8. Xtian July 19, 2021 9:59 am

    I wonder if the rest of the Georgetown Law, Georgetown University professors agree with Mr. Flynn’s statements? I also query how Mr. Flynn’ statements are consistent with The Georgetown University Office of Technology Commercialization (OTC) https://otc.georgetown.edu/about/ which is committed to commitment to protecting and commercializing the intellectual property and to facilitating introduction of innovation into the market place. Shouldn’t G-Town just be giving their IP away?

  9. Anon July 19, 2021 12:31 pm

    Xtian,

    Are you presuming that Academia has any controlling ethical standards?

    Consistency may well be only a minor issue (not to say that you are not correct on that issue – you most definitely are)

  10. xtian July 20, 2021 12:10 pm

    Anon,

    I have partnered with many an academic institution. Their defense of their IP is the most rigorous among any biotech/big pharma players out there. Universities saw the value of licensing IP, and what it means (hint: big $$$, and big prestige). I do not consider Universities to be altruistic in “search of knowledge.” They are running the rat race just like the rest of bio and big pharma in the chase for the almighty dollar. In fact, one might say they are the most egregious non-practicing entities out there!

    Back on point, I just wonder if Mr. Flynn considered his own employers view of IP when supporting the waiver.

    Would Mr. Flynn be able to convince his own employer to give up their IP rights if GU had IP implicated by this waiver? I would very much like to be a fly on the wall in that discussion:)

  11. Anon July 20, 2021 2:37 pm

    xtian,

    While my practice does include some University (and University-related) innovators, the bulk of my practice does not.

    So I do understand your point about some aspects of “running the rat race just like the rest” – and I would also emphasize the very real point that “Academia” has a Left Hand/Right Hand problem.

    By this, I mean that certain Right Hand aspects of a lot of universities are in that rat race, see the benefits of an innovation protection system and seek to avail to themselves the benefits that such a system provides (and wanting to fully partake in the Quid Pro Quo of such systems — which has zero to do with altruism — for anyone).

    That being said, MOST all of ‘the rest’ of Academia exhibits the historical taint of captured ‘Liberalism’ and heavily runs to the anti-capitalistic and anti-property spectrum of philosophy.

    The Left Hand (IMHO) is far stronger than the Right Hand – no matter the dollars coming through.

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