Iancu, Locke and Kappos Slam Biden Administration’s Support for COVID IP Waiver in New White Paper

By Eileen McDermott
November 17, 2021

“The mRNA technology underlying the vaccines, like all technology, also has the potential to be used for nefarious purposes. Giving it away willy-nilly to anyone who wants it would be both economically unwise and strategically imprudent.”

Andrei Iancu (left), David Kappos (top) and Gary Locke.

Former U.S. Patent and Trademark Office (USPTO) Directors Andrei Iancu and David Kappos, and former Secretary of Commerce Gary Locke, today released a White Paper calling the Biden Administration’s decision to support a waiver of intellectual property protections for COVID-19-related technologies under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “strategic folly.” The report was produced by the Center for Strategic and International Studies (CSIS).

In the paper, titled “The Shot Heard around the World”, the three officials, two of whom served under the Obama Administration, explained that the United States must indeed ramp up its efforts to improve vaccine diplomacy and to distribute more vaccines globally, but that “[w]aiving IP protections would not lead to the manufacture of a single additional dose of a vaccine.” Instead, they proposed a number of alternative solutions to solve the “real problems.”

The United States’ Inaction is China’s Gain

The authors outline how China has seized the opportunity to fill a strategic gap left by the United States’ lack of leadership on vaccine distribution at the price of “inferior vaccines” and “foreign-policy concessions.” For example, in Paraguay, only 37% of the population was fully vaccinated as of November 2021, and the lack of vaccine assistance from the United States and Europe has allowed China to offer access to the Sinovac vaccine, in exchange for Paraguay’s agreement to cut diplomatic ties with Taiwan, says the paper. In Algeria, the government promised not to criticize Beijing’s human rights abuses in Hong Kong right as Chinese vaccines arrived, and in Brazil, vaccines arrive “around the same time Brasilia unexpectedly re-invited Chinese telecom giant Huawei to join in building out the South American nation’s 5G wireless network—reversing its previous policy banning Huawei technology.”

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The proposal by India and South Africa to waive IP protections for COVID vaccine technology would only widen the gap and create more such opportunities for China, along with additional barriers to production. Eliminating IP protections would not result in more vaccines, in part because “there is currently no capacity to make more; production facilities are running at full tilt, and the supply of key ingredients in the manufacturing process has already been fully tapped,” write the authors. Furthermore, a waiver would open the door to rivals who are eager to steal the United States’ valuable mRNA technology, putting the United States at a competitive disadvantage and raising national security implications as well. The paper explains in a section titled “The Strategic Folly of a TRIPS Waiver,” “U.S. taxpayers funded some mRNA advances through the Defense Advanced Research Projects Agency, and the mRNA technology underlying the vaccines, like all technology, also has the potential to be used for nefarious purposes. Giving it away willy-nilly to anyone who wants it would be both economically unwise and strategically imprudent.”

Real Solutions

Instead, the paper’s authors propose that critics of the vaccine rollout refocus their efforts. While “they are unquestionably correct that the global vaccine rollout has been too slow—and too inequitable,” they have “settled on the wrong solution.” To fulfill its “moral obligation” to provide equitable vaccine access across the globe, the United States must focus on six key areas in which barriers to access still exist: Raw Materials, Trade Barriers, Supply-Chain Tracking, Manufacturing Capacity, Donations and Leadership.

With respect to Trade Barriers, the paper suggests that tariffs and trade restrictions should be eliminated, including “onerous and unnecessary customs requirements.” And while the United States’ commitment to provide or finance 1.1 billion vaccine doses abroad, making it the single largest donor of COVID-19 vaccines, is commendable, a Brookings Institution analysis found that by December 2021, the United States may still have a surplus of more than 1 billion shots. “Whatever the United States can spare, it should give to foreign governments and international relief efforts such as COVAX, the global facility for promoting vaccine access,” the paper suggests. “These donations should include shots and the equipment to ship, refrigerate, and administer them.”

Finally, the paper recommends that the Administration should build international capacity for future pandemic planning, modeling the effort on the President’s Emergency Plan for AIDS Relief (PEPFAR), instituted by President George W. Bush.

The authors point to European leaders from across the political spectrum who have resisted the IP waiver proposal, including outgoing German chancellor Angela Merkel and European Commissioner for Trade Valdis Dombrovskis. Both leaders have noted IP protection as being integral to any solution.

Ultimately the Indian and South African proposal is about those governments securing access to U.S. technologies “so their domestic biotech industries can gain an unearned advantage,” concludes the paper. It ends:

Smart vaccine diplomacy abroad, expanded drug-manufacturing capacity at home, and protection for IP rights align with President Biden’s agenda to “build back better.” With this approach, Americans can help themselves the best way they know how—by helping everyone else.

U.S. Trade Ambassador Katherine Tai is meeting with government officials in Japan, Korea, and India this week to discuss ways to “strengthen trade and economic relationships with key allies and partners,” and the World Trade Organization’s 12th Ministerial Conference is set to take place from November 30 – December 3 in Geneva, Switzerland.

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 4 Comments comments. Join the discussion.

  1. Pro Say November 17, 2021 6:09 pm

    Force private companies to waive away America’s highly-valuable, critically-important vaccine IP rights to whomever comes knocking?

    Harrumph.

    What’s next — waive away America’s highly valuable, critically-important IP rights to whomever comes knocking . . . by unconstitutionally restricting which innovations qualify for patent protection . . . and which don’t?

    Nah. That would never happen.

    Not in America.

  2. Model 101 November 18, 2021 2:26 pm

    Thousand attaboys to these guys!

  3. Curious November 18, 2021 3:39 pm

    Yet the United States and other wealthy nations can and should give more. The United States, like many prosperous countries, already has a surplus of Covid-19 vaccines, with hundreds of millions of doses in danger of expiring before they can be administered. Washington should collaborate with its allies and industry partners to ship these doses abroad immediately to prevent needless hospitalizations and deaths and help stop the spread.
    And some people complain about virtue signaling.

    I think most US citizens would agree that protecting the lives of the people in the US should take precedence. The ‘government for the people and by the people’ doesn’t refer to non-US citizens living abroad.

    Let’s emphasize the paragraph immediately preceding this paragraph:
    To the Biden-Harris administration’s credit, the United States has committed to financing or providing 1.1 billion vaccine doses abroad, with most designated for low- and lower-middle-income nations. Of these doses, 160 million have already shipped. The commitment makes the United States the largest single-country donor of any vaccine, ever.

    We (i.e., the US) have a primary duty to our own citizens — not the citizens of the world. However, helping the citizens of the world helps the US for at least a couple of aspects: First, the pandemic does not respect borders so eradication/mitigation of the virus must occur everywhere to be effective. Second, helping other countries is good for diplomacy. There will always be opportunities in which reciprocal help from other countries will be beneficial to US interests.

    The authors point to European leaders from across the political spectrum who have resisted the IP waiver proposal, including outgoing German chancellor Angela Merkel and European Commissioner for Trade Valdis Dombrovskis.
    This is smart diplomacy on part of the US. They let Germany and EU be the bad guys while we get to be the good guys.

    I agree with the following point from the white paper:
    However, there is plenty of reason to view the proposal’s official rationale with skepticism. As Washington Post columnist Josh Rogin observed, “Countries like India and South Africa”—home to huge generic-drug industries—“have been trying to weaken WTO intellectual property protections for decades.

    As I have written before, India and South Africa aren’t really looking to get more shots in arms. Everything that is capable of being produced is being produced. They are out for the technology for their own pharma industries. I have little doubt that as the US slows plays this, the US will not put pressure on their allies to support such a waiver, which is what is really required to get the waiver through.

    On the flip side, the US (i.e., more specifically, the administration) could be using this not only as a diplomatic effort but also as leverage against the US pharma industry. I have little doubt that the administration is going to try to introduce some legislation to reduce the cost of prescription drugs in this country. Naturally, pharma is going to fight this tooth and nail. As with most legislation, there is horse trading going on to get something passed. In this instance, maybe the end game of this waiver is to use it to get the pharma industry to support a legislative initiative. In short, the administration might say to pharma: if you don’t back our legislation, we are going to continue to push for this waiver. Now that I think of it, this makes the most sense.

    Whatever one thinks of the figureheads associated with each party, I have little doubt that many of the faceless underlings whose work underlies many of the decisions made in an administration are quite competent. On its face, the grant of this proposed waiver doesn’t give the US sufficient return for what is being given up. This is why I believe this NOT-YET-GRANTED waiver is being used for other purposes.

  4. Anon November 18, 2021 6:58 pm

    Thanks Curious – nice post.

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