Tai Tells Tillis Support for COVID-TRIPS Waiver is Not Political but Based on ‘Extraordinary Circumstances’ of the Pandemic

By Eileen McDermott
November 12, 2021

“The decision to support a waiver of IP protections for COVID-19 vaccines reflects the extraordinary circumstances of this pandemic.” – Katherine Tai, USTR

https://depositphotos.com/3989836/stock-illustration-global-viruses-3d.htmlFollowing four letters sent by Senator Thom Tillis (R-NC) to United States Trade Representative (USTR) Katherine Tai regarding the proposed waiver of intellectual property rights under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, Tai on November 8 replied to a July 14  letter sent by Tillis and Senator Tom Cotton (R-AR). That letter referred Tai and Commerce Secretary Gina Raimondo to a May 19 letter in which Tillis, Cotton and 14 other senators requested responses to 10 questions on the proposal to waive IP rights for COVID-19 related technology. The May 19 letter had requested Tai and Raimondo’s responses by July 19, 2021.

In the November 8 response letter, Tai explained that the Biden Administration believes in strong IP rights, “but in service of ending this pandemic, supports a waiver of those protections for COVID-19 vaccines.” She added that the USTR is “facilitating discussions at the WTO in an effort to foster consensus among its 164 members.” She addressed several of Tillis’ 10 questions, but not all.

In response to Tillis and Cotton’s request for a list of all meetings with foreign officials where the TRIPS waiver was discussed, Tai explained that “USTR has worked to improve transparency, including through meeting readouts. For example, the readouts for the meetings with the Indian Commerce Minister and the South African Trade Minister noted discussion on the proposed waiver.”

The readouts to which Tai seems to be referring can be found here and here. The readout of the South Africa meeting merely indicates that Tai and South Africa Minister for Trade, Industry and Competition Ebrahim Patel “discussed multilateral topics including the World Trade Organization’s (WTO) efforts to end the pandemic, including the proposed waiver to certain provisions of the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for the COVID-19 pandemic.” The readout of the meeting with India Minister of Commerce and Industry Piyush Goyal said that Tai:

[R]eaffirmed the commitment of the United States to help India during its time of need. She explained her support for the waiver of intellectual property protections for COVID-19 vaccines and text-based negotiations at the WTO, which are part of the Biden-Harris Administration’s comprehensive effort to expand vaccine manufacturing and distribution around the world. Ambassador Tai recognized the WTO Members who have expressed support for future negotiations and welcomed an update from Minister Goyal about India’s efforts to revise and resubmit their waiver proposal.

As to the senators’ question regarding whether the Biden Administration plans on waiving U.S. IP laws and domestic intellectual property enforcement, including enforcement against intellectual property and trade secret theft, Tai said in her response that “changing U.S. law is the domain of Congress.” However, as far as “other countries’ usage of TRIPS flexibilities, the Biden-Harris Administration respects a trading partner’s right to protect public health and, in particular, to promote access to medicines for all.”

Replying to a question on how many countries have ever used the TRIPS flexibilities since 2001, “including the TRIPS amendment on compulsory licensing for export,” Tai said the USTR is aware of only one special export license that has been exercised, by a Canadian company to ship an AIDS therapy drug to Rwanda.

Addressing Tillis and Cotton’s question asking whether the Biden-Harris Administration’s decision to support waiver was “premised on China, Russia, South Africa, India, or any other nation state supporting other foreign policy priorities of the Administration,” such as climate priorities, Tai denied the accusation, and said that “the decision to support a waiver of IP protections for COVID-19 vaccines reflects the extraordinary circumstances of this pandemic.”

As to the process by which the Administration concluded that IP was a barrier to vaccine manufacturing, Tai explained that the Administration has been consulting with “labor organizations, civil society, public health advocates, public health experts both inside and outside of the government, and vaccine manufacturers themselves” on “issues related to manufacturing capacity” and that the USTR “will continue to ramp up efforts to work with the private sector and other partners to expand vaccine manufacturing and distribution around the world.”

Finally, Tai said that the need for increased vaccine production “does not adversely affect American pharmaceutical workers” and that the USTR will “be clear-eyed about potential risks as we enter text-based negotiations” and keep Congress fully informed.

As IPWatchdog Founder and CEO Gene Quinn has noted, time is running out for an agreement on waiver to be achieved, due to “the simple fact that the COVID-19 pandemic is coming to an end, and any agreement reached by WTO members to circumvent intellectual property rights will have no impact on the pandemic whatsoever.”

Image Source: Deposit Photos
Author: cteconsulting
Image ID: 3989836

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 12 Comments comments. Join the discussion.

  1. Anon November 12, 2021 9:16 am

    Bah, the Executive Branch feels zero compunction to be answerable to the Legislative Branch.

  2. TFCFM November 12, 2021 11:00 am

    Honestly, was is Ms. Tai SUPPOSED to say?

    Mr. Biden wants to LOOK LIKE he’s doing something useful, even if he hasn’t got the slightest clue what he’s talking about“?

  3. Curious November 12, 2021 5:34 pm

    As IPWatchdog Founder and CEO Gene Quinn has noted, time is running out for an agreement on waiver to be achieved, due to “the simple fact that the COVID-19 pandemic is coming to an end, and any agreement reached by WTO members to circumvent intellectual property rights will have no impact on the pandemic whatsoever.”

    As of a couple of days ago, India has administered a billion doses. What percentage of that is the “good” vaccines versus the not-so-good vaccines is unknown to me. Additionally, 70% of adults have received at least one dose.

    12 months from now, India will be fully vaccinated and there will no longer be “Extraordinary Circumstances.” In that situation, my prediction is that the US will quietly withdraw their support (as was always intended). In the meantime, the US gets to look like the good guy in the world’s eye.

    This “waiver” was always about PR — regardless of the “official” line. The reality of the situation is that even if a waiver is granted, doses aren’t going to get into arms any faster than they would without the waiver. Manufacturing capability and the know-how is far more important than the patent rights.

  4. Pro Say November 12, 2021 8:56 pm

    +1 Curious.

  5. Greg DeLassus November 12, 2021 11:45 pm

    This “waiver” was always about PR — regardless of the “official” line.

    Exactly.

  6. Anon November 14, 2021 7:28 am

    I certainly agree that the US position on “this ‘waiver’” was always about PR.

    Three important points though.

    1) The originators of the waiver certainly wanted more than mere PR.

    2) The jewels of want they wanted were not PATENT waiver.

    3) The fact of the matter that when the current US Liberal Left Administration did provide their virtue signaling, those — like Greg DeLassus, whom are quick to genuflect at the altar of the Liberal Left on most any other issue — were shown to the hypocrites that so many on the Liberal Left are.

  7. Curious November 15, 2021 12:13 am

    The originators of the waiver certainly wanted more than mere PR.
    The originators of the waiver never had any clout. Moreover, the US took away whatever PR clout they could give — ‘oh yeah, we’ll argue for the waiver’ — by agreeing to support a waiver, while knowing perfectly well that the waiver was never going to happen.

    The jewels of want they wanted were not PATENT waiver
    That’s sweet. They aren’t/weren’t getting those either.

    3) Don’t confuse hypocrisy with diplomacy. Sometimes, you say things you don’t mean in diplomacy. Oftentimes, both sides know that you don’t mean it, but the statement is enough to mollify certain elements.

    The mRNA technology isn’t just going to be used to address COVID. The possible uses for mRNA are staggering. Those jewels aren’t going anywhere.

  8. Anon November 15, 2021 2:13 pm

    Curious,

    You seem to be disagreeing with my position, but through a bit of a strawman…

    The originators of the waiver never had any clout..

    and

    That’s sweet. They aren’t/weren’t getting those either.

    Neither of these are necessary to understand what the INTENT of the waiver was meant for.

    Don’t confuse hypocrisy with diplomacy

    I am not doing so.

    I fully understand the ‘diplomacy’ in action by this administration. The hypocrisy comes from those like Greg, who identify as Liberal Left — except when it is HIS ‘pocketbook’ that would be picked.

    Notably, anyone NOT getting anything changes nothing about what was being attempted to be gotten.

    Look back at my (consistent) posts. Then look at the Naysayers who simply refused to admit my position was the correct one.

    The mRNA technology isn’t just going to be used to address COVID. The possible uses for mRNA are staggering.

    Absolutely – this was an important foundation to my position, and exactly why the NON-Patent side of the fence was the real goal.

  9. Curious November 15, 2021 3:12 pm

    Neither of these are necessary to understand what the INTENT of the waiver was meant for.
    The intent of the waiver (at least for the S. African and India) side was to effect some type of tech transfer. That’s not happening.

    The whole pharmaceutical industry would have a hissy fit if that ACTUALLY happened. The reality, however, is that it isn’t actually going to happen. The pharma industry has more clout in the US than India and S. Africa, combined. The (US) pharma industry can make campaign contributions. India and S. Africa cannot.

    The whole ‘follow the money’ adage applies well here. This is why I’ve always been rather nonplussed by the whole issue. The money favors not having a waiver be granted. All the US has to do is wait for the need for the waiver to become moot and then they can back away from supporting it.

    If the US was fast-tracking the waiver, then we are having very different discussion. However, the US appears to be slow-playing this.

    Then look at the Naysayers who simply refused to admit my position was the correct one.
    And what point was that? Alternatively, what position were the “Naysayers” refusing to admit?

  10. Anon November 15, 2021 5:19 pm

    The Naysayers were attempting to discount two things (at least):

    1) IP waiver was never really about Patent waiver. The jewels were always elsewhere.

    2) Those jewels really were being pursued.

    Sure, you say now that “If the US was fast-tracking the waiver, then we are having very different discussion” but this simply does not address what was on the table WITH the waiver in play.

    Quite in fact, the manner in which the US has ’employed diplomacy’ is NOT over (even though the immediate threat of the pandemic may be winding down), because the reason for the Liberal Left virtue signaling (that being “equity”) is still very much around.

    Just take a gander at the climate issue, where the world’s WORST polluters (China and India) are NOT in the crosshairs, but the wealthy nations are. The world does not care one iota WHERE the pollution is coming from and if that nation ‘needs to catch up,’ and yet, the “diplomacy” certainly is treating such as some type of “fact.”

    In those case, “diplomacy” and “hypocrisy” DO have a fair amount of overlap.

  11. Curious November 16, 2021 12:54 pm

    The Naysayers were attempting to discount two things
    Not that I recall.

    Quite in fact, the manner in which the US has ’employed diplomacy’ is NOT over (even though the immediate threat of the pandemic may be winding down), because the reason for the Liberal Left virtue signaling (that being “equity”) is still very much around.
    You still don’t appreciate the difference between ‘virtue signaling’ and ‘virtue doing.’ I don’t care if the US Government is virtue signaling if it gets them in good standings with other countries.

    Just take a gander at the climate issue, where the world’s WORST polluters (China and India) are NOT in the crosshairs, but the wealthy nations are.
    India and China are most certainly in the crosshairs. However, in a situation in which we are relying upon voluntary compliance, the biggest polluters have the most leverage.

  12. Anon November 16, 2021 1:53 pm

    You still don’t appreciate the difference between ‘virtue signaling’ and ‘virtue doing.’ I don’t care if the US Government is virtue signaling if it gets them in good standings with other countries.

    I very much understand the difference. What YOU prefer has nothing to do with those differences or my understanding of those differences.

    Further, whether or not any ACTUAL ‘virtue doing’ has nothing at all to with being in “good standing.” With that comment of yours, YOU appear to be the one not appreciating the difference between virtue signaling and virtue doing.

    As to your climate comment, I really do not grasp the point that you attempting to make (nor see any indicators that China and India are in the crosshairs as opposed to, say, the US).

    You seem also to be contradicting yourself vis a vis that “in good standing” comment, as leverage (applied BY polluters to excuse themselves in order to “catch up”) appears to be a “by fiat” type of move – the opposite of what one would expect if one were aiming for appealing to any type of “good standing.”

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