Tillis Pushes Tai Again on TRIPS IP Waiver Proposal, as South Africa Asks to Delay Delivery of Vaccines

“While the Administration is busy seeking to authorize China and other countries to steal innovative U.S. technology, much-needed American leadership is lacking when it comes to solving actual problems on the ground in developing countries.” — Tillis letter to Tai

https://depositphotos.com/457883132/stock-illustration-global-program-fight-coronavirus-planet.htmlYesterday, Senator Thom Tillis (R-NC), the Ranking Member on the Senate IP Subcommittee, wrote to Ambassador Katherine Tai, the United States Trade Representative who is responsible for negotiating an IP Waiver to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement with the World Trade Organization (WTO). This TRIPS IP Waiver is generated by proposals submitted by South Africa and India and seeks the waiver patent and trade secret protections relating to COVID-19 innovations. This is the fifth such letter Tillis has sent Tai.

As noted by Senator Tillis and many commentators, including here on IPWatchdog, the proposed TRIPS IP Waiver is nothing more than an attempt to steal intellectual property rights covering important innovations that took nearly a generation to bring to fruition. And now we have definitive proof.

South Africa’s Surplus Exposes the Real Problem

Even as the WTO is presently working with nations sympathetic to the South African and Indian proposal, including the United States government, which has shockingly announced that it supports the forced transfer of property rights from innovators to everyone, we learn that South Africa has more vaccine than they can use.

According to Reuters, “South Africa has asked Johnson & Johnson and Pfizer to delay delivery of COVID-19 vaccines because it now has too much stock, health ministry officials said, as vaccine hesitancy slows an inoculation campaign.”

“Clearly their desire for a TRIPS waiver has less to do with vaccination efforts and more to do with their long-standing efforts to steal American intellectual property by forced technology transfer,” wrote Senator Tillis after learning that South Africa, which started the push for the waiver related to COVID-19 vaccine technologies and innovations, has a vaccine surplus.

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“The fundamental assumption that intellectual property is a barrier to production and sharing vaccines is wrong,” Tillis’ letter goes on, which is obviously true given the abundance of supply of vaccine. If patent and other intellectual property rights were, in fact, a barrier, there would not be a surplus to the point where South Africa is asking for shipments to cease. To the contrary, if patents and other forms of intellectual property were a barrier to production and sharing of vaccines there would be a shortage, which is not the case.

“The Administration’s misplaced focus and politicization of this critical issue poses grave risks. By undermining property rights, the United States risks jeopardizing our ability to respond to the next pandemic because American companies and workers can no longer have faith that our laws will be respected and their property protected,” Tillis wrote. “While the Administration is busy seeking to authorize China and other countries to steal innovative U.S. technology, much-needed American leadership is lacking when it comes to solving actual problems on the ground in developing countries—like shortages of healthcare workers, lack of availability of syringes, and a lack of the ‘cold chain’ necessary to transport and store doses.”

Need to Refocus

Although not as sexy as waiving intellectual property rights, and unlikely to make U.S. negotiators as popular among the technology-taking countries, a focus on the planning, logistics and last mile issues associated with delivering vaccines would be far more productive than forcing technology transfer and allowing those not competent to manufacture safe and reliable vaccines to compete for the supply chain resources necessary to produce and distribute vaccines around the world. This is particularly true where South Africa has more vaccines than it can use and early evidence suggests that even current vaccines provide protections against the Omicron variant.

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13 comments so far.

  • [Avatar for Anon]
    Anon
    December 9, 2021 10:14 am

    Greg @12,

    Most likely. Probably a ‘quick’ and colloquial abbreviation (for the newbies: https://www.uspto.gov/patents/apply/applying-online/country-codes-wipo-st3-table )

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 8, 2021 07:28 pm

    SA and IN have asked for more than the waiver…

    When has Saudi Arabia asked for anything waiver-related? Do you mean “ZA”?

  • [Avatar for Anon]
    Anon
    December 8, 2021 09:29 am

    Xtian,

    Greg is not here to engage in an actual dialogue but is instead only here to present his advocacy.

    He will not engage in any meaningful manner and thus has earned more than a bit of the John Maynard Keynes treatment.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 7, 2021 11:11 am

    [A]ny support of the Trips waiver… is simply disingenuous virtue signaling.

    “Virtue signalling” is one of those empty epithets like “extremist” that mean a million different things in a million different mouths. If you wish to deride my position as “virtue signalling,” I will not contest the charge. Precisely, however, because we both agree that the TRIPS waiver would be an empty gesture, I do not see any useful purpose in opposing the waiver.

    As for “dangerous precedent,” how so? Near as I can see, the precedent would be “in the instance of a once-in-a-lifetime global health emergency, the WTO will respond with an empty gesture.” I would call that precedent “underwhelming,” but scarcely “dangerous.”

    Imagine that I am wrong, however, and the waiver constitutes the first foot on a slippery slope to… well, what exactly? Full repeal of the TRIPS agreements? How bad would that be, really?

    Twenty seven years on from the TRIPS accords taking effect, the lived experience of TRIPS has been one of passive aggressive foot dragging (do you find BR or IN patent prosecution to be especially fruitful?) and deadweight loss. If this waiver really were the camel’s nose under the tent flap of full TRIPS repeal, that might actually be a good thing. Such would not affect US/EP/JP/etc. IP at all, but it would give developing economies the freedom to catch up, and thus become better customers for our clients.

  • [Avatar for Xtian]
    Xtian
    December 7, 2021 09:04 am

    Greg @6

    While not as snarky as “anon,” I agree with him/her.

    First, any support of the Trips waiver, when we now have all admitted that such a waiver has no practical effect to help the situation, is simply disingenuous virtue signaling. We all know the other threads where SA and IN have asked for more than the waiver. They asked for transfer of technology, which was met with silence.

    Second, this creates a dangerous precedent. There will be a future time for calls of another waiver. We might not be as fortunate that this future waiver will have no practical effect like in the present situation.

    Support of TRIPS waiver: an elites philanthropy of defective altruism.

  • [Avatar for Pro Say]
    Pro Say
    December 6, 2021 04:13 pm

    “which renders the receiver sterile.”

    Given Earth’s gross overpopulation and the closely-related devastating climate change . . . wouldn’t this be — overall — a good thing if correct?

    Free birth control for everyone? What’s not to like? 🙂

  • [Avatar for MaxDrei]
    MaxDrei
    December 5, 2021 09:54 am

    I’m not in South Africa. Rather, I’m in Germany. But I can confirm that “last mile” problems are huge, even here. Even now, one in three adult Germans declines to be vaccinated. Each vaccine-denier has their own theory to justify their denial of reality. Suprisingly many declare genetic manipulation to be the stuff of the Devil which renders the receiver sterile. Combatting these views is proving to be almost impossible. It’s probably rather similar in Africa, eh?

    BTW, thanks Greg, for explaining who is waiving what. There eems to be even more disinformation in circulation over the Waiver as over the vaccine itself. It is as if people these days have an attention span by now down to 5 seconds (or less).

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 3, 2021 02:03 pm

    Thanks, Xtian, for your question, as it affords me yet another opportunity to clarify some common misconceptions about the TRIPS waiver. Although you will commonly see it described as an “IP waiver,” the proposed text in front of the WTO does not actually purport to waive any IP. Do not take my word for this; read the text yourself (URL below) and try to spot the provision that would have the legal effect of waiving IP. You will not be able to do so, because no such provision exists.

    Rather than waiving national IP laws (which the WTO has no power to do), the proposed waiver would permit individual countries to relax their own IP laws, without fear of reprisal at the WTO for violating TRIPS. In other words, even in a hypothetical world in which the WTO passes the TRIPS waiver, U.S. IP laws would continue in effect in the U.S., Canadian IP laws would continue in effect in Canada, German IP laws would continue in effect in Germany (etc. and so forth)—unless and until the national governments of those nations should choose to take the necessary steps according to their own internal laws and constitutions to suspend those IP laws.

    While I support the TRIPS waiver, I definitely do not support (and never have supported) the idea of the U.S. waiving its own patent or trade secret laws. Indeed, in the case of trade secrets, this is governed more by state law than U.S. federal law, so such a waiver would actually require the action not only of the U.S. Congress, but also of at least the DE, IN, MA, MD, MO, NJ, & NY state governments. To belabor the obvious, this will not happen, so there is no sense for anyone (least of all myself) to spend any time advocating for such an outcome.

    Once one realizes, however, that U.S. IP law will not change even in a hypothetical world in which the WTO passes the TRIPS waiver, one can see why your question is a bit beside-the-point. I would ask, why should Arbutus not proceed with a patent suit in U.S. court against ModeRNA? That is what one does when one has a dispute about infringement of a U.S. patent.

    I have only one small quibble about any such hypothetical suit by Arbutus against ModeRNA. Ordinarily, in such circumstances I would generally be on the side advocating for a preliminary injunction. Assuming, however, that such a suit commences soon (while on-going vaccine production is still socially important), I believe that the “public interest” prong of the preliminary injunction balancing test will outweigh all other considerations when it comes to the ongoing manufacture of vaccine doses. Under the circumstances, ModeRNA should not be enjoined from ongoing manufacture during such a suit, but rather the remedy for a conclusion of infringement should be handled on the damages end.

    https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669R1.pdf&Open=True

  • [Avatar for Anon]
    Anon
    December 3, 2021 11:09 am

    Mr. DeLassus’s post was ‘in process’ when I posted my comment above, elsewise, I would have lampooned him for his empty virtue signaling of “happen to favor the TRIPS waiver,” as he has fought against the full impact of what that waiver would entail (in a most dishonest manner).

    It is beyond clear that his Big Pharma pocketbook hit provides “support” only so far as the FULL (and not just patent) IP waiver never actually gets implemented.

  • [Avatar for Xtian]
    Xtian
    December 3, 2021 10:08 am

    Greg – Given your take on TRIPS, what is your thoughts on Moderna Arbutus? Should Arbutus not pursue their case against Moderna?

  • [Avatar for Pro Say]
    Pro Say
    December 2, 2021 05:00 pm

    Shoot. Why stop with giving away our Covid innovations?

    Let’s include our military secrets while we’re at it.

    Biden and his administration continues to disappoint . . .

  • [Avatar for Anon]
    Anon
    December 2, 2021 02:06 pm

    I am not surprised by this, as I have ever stressed that the “patent waiver” side of the equation was never the true prize.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    December 2, 2021 02:05 pm

    <i<[A] focus on the… logistics and last mile issues associated with delivering vaccines would be far more productive than… allowing those not competent to manufacture safe and reliable vaccines to compete for the supply chain resources necessary to produce and distribute…

    I happen to favor the TRIPS waiver, but I can certainly agree with the above. Solving those “last mile” issues will do orders of magnitude more good than the waiver ever could. The affirmative argument for the waiver grows weaker each day, as anti-vaxx sentiment becomes more of an obstacle than vaccine availability in more and more regions of the world.

    The U.S. put a man on the moon. We can—if we commit to the goal—figure out how to run cold chains to the less wealthy parts of the world.