The effort India and South Africa are leading at the World Trade Organization would directly harm one of the United States’ leading research and development assets and highly important industrial sectors.
The initiative is, unfortunately, gaining traction, while some Democrats in Congress are pressing President Joe Biden to add U.S support to this misguided idea. Of course, this would be a self-inflicted wound that would reduce future medical innovation, cede competitive ground to China, and not help poor countries.
The WTO ploy seeks to persuade the WTO TRIPS Council to waive 1994 Trade-Related Aspects of Intellectual Property Rights Agreement obligations to protect intellectual property for any inventions related to COVID-19.
If successful, the move would set a precedent for foreign expropriation of U.S. companies’ intellectual property(IP). It certainly would not be limited to biomedical innovation, but ultimately would be applied to all innovative technologies.
This threat to American innovation has rightly been criticized, including by The Wall Street Journal, former FDA Commissioner Scott Gottlieb, and the Global Innovation Policy Center.
The Journal’s editorial “Watch Out for a Vaccine Patent Heist” says: “Patent-breakers are presenting a false choice between protecting intellectual property and public health. . . . What’s really grotesque is the left’s failure to understand that private innovation and investment benefit everyone. COVID vaccines are now available because of decades of research and tens of billions in investment by U.S. and European companies into vaccines for other infectious diseases, which kill more people in poor countries than COVID does.”
Gottlieb offers PEPFAR as an alternative model for the Biden administration. It would achieve the ostensible goal without inflicting damage to private IP ownership rights. He explains the fallacy underlying the claims being proffered at the WTO and in Congress: “Allowing other manufacturers to appropriate the intellectual property wouldn’t increase the supply of the starting ingredients. … As raw ingredients are diverted to new manufacturers with far less efficient production, and as these new companies would then run new clinical trials on copied vaccines, worldwide production of the vaccines would decline, not expand.”
Patrick Kilbride of the U.S. Chamber’s GIPC observes, “The bottom line is this: Weakening intellectual property protections, as the WTO waiver proposal would do, will not increase access to the tools we need to fight COVID-19; in fact, they would hinder access to the COVID-19 tools we’ve discovered already, and it will stop the search for new tools right in its tracks. Put simply, weakening intellectual property protections won’t help us, and it will hurt us.”
[I have written on this issue for Conservatives for Property Rights and for Eagle Forum Education & Legal Defense Fund.]
At a 2018 hearing in the Senate Judiciary Subcommittee on Intellectual Property, Hans Sauer of the Biotechnology Innovation Organization noted how easy it is to claim, long after the heavy lifting of discovery and development is completed, risk capital has long since been invested, and a product has finally entered the market, that its inventor-commercializer ought to forego patents in the public interest, “[a]s if innovative products fell from the sky and ought to go directly into the public domain.”
Such is exactly the cavalier mindset behind the WTO expropriation attempt. If this passes at the WTO, then the world is worse off.
Finally, it’s imperative to note the stakes regarding our national competitiveness in emerging technologies with an increasingly aggressive China. China has strengthened its patent system and is using technological innovation and its military-civil fusion strategy to overcome the United States in emerging technologies.
Also, the National Security Commission for Artificial Intelligence, in its recent final report, lists emerging technologies that are “crucial to future national competitiveness.” NSCAI names “microelectronics, biotechnology, quantum computing, 5G telecommunications, autonomy and robotics, advanced manufacturing, and energy systems” as crucial emerging technologies.
The Information Technology and Innovation Foundation discussed the stakes in the biopharma competition for global leadership in a recent report.
Thus, it would be foolhardy to sacrifice our biopharmaceuticals industry, a vibrant, high-value sector in which America leads the world.
Innovation has long been America’s competitive edge. We must safeguard the R&D sectors of our economy and our innovation ecosystem as the national assets they are.
