In the euphoria — and shock — of Washington’s support for waiver of intellectual property rights (IPR) to fight the pandemic, public health activists and governments across the world have gone overboard in welcoming what they see as a dramatic turnaround in the United States’ position. Belief in patents and other forms IPR is an article of faith deeply embedded in the US system and it appeared that US President Joe Biden, the caring face of post-Donald Trump US, was willing to set aside this basic tenet in a larger cause.
Pressure has been mounting in recent weeks on the US and other European countries that have been stonewalling the India-South Africa proposal in the World Trade Organization (WTO) for a temporary waiver of its restrictive IPR regime known as the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement. This protection of monopoly rights they say has denied them access to therapies, vaccines and equipment to fight COVID-19 in developing countries and resulted in gross health inequities. The proposal has not made much headway since it was tabled in October, although 60 countries are now co-sponsoring it. There is not even an agreed text of the proposal so far.
In recent days pressure has been mounting on the Biden administration to support the waiver with over 170 former heads of government and a clutch of Nobel laureates calling on the US to support the proposed TRIPS waiver. This came on the back of several other campaigns by public health organisations and humanitarian organisations such as Amnesty International and Medecins sans Frontieres pointing out that TRIPS does not allow for equity in access to medicines, vaccines and equipment need to stamp out the COVID-19 pandemic. Acute scarcity of these supplies could only be addressed through diversification of manufacturing which is now concentrated in rich countries and protected by IPR.
Has Washington been persuaded by such arguments? The announcement by Trade Representative Katherine Tai of May 5 has been widely welcomed perhaps too prematurely despite its glaring shortcomings.
For one, it makes no mention of the India-South Africa initiative and for another, its support for IPR waiver is confined to vaccines. The US says it will participate in text-based negotiations at the WTO needed to make the waiver happen. This is the looming problem. It means the US and its allies will insist on having a hand in the text. South Africa and India were in the process of redrafting their initial proposal to emphasise the time-barred nature of the general TRIPS waiver they were seeking when the US played its hand. Developing countries are unlikely to be steering the wording of the proposed text.
Not surprisingly, perhaps, the US move was welcomed within hours by the European Union and other European countries, such as Switzerland, which are among staunchest opponents of the waiver. A text-based negotiation at the WTO is a daunting prospect because the WTO works on the principle of consensus. This makes the negotiations drag on. Tai did not fail to point out how time-consuming the negotiations could turn out because of “the complexity of the issues under discussion”.
The battle ahead will be tough for the developing world. It cannot afford to settle for a waiver on just vaccines as it struggles against a devastating second wave of the pandemic when medicines and vaccines are in acute short supply. Rich countries have always proposed alternate methods of producing patented drugs without an IPR waiver. One such is voluntary licensing by the patent holder. But as India’s experience with Remdesivir shows, this has limited benefits. The drug has been licensed to a clutch of Indian companies by Gilead, but their production has been unable to meet the soaring demand or to keep prices down.
The Biden administration, however, can bask in the afterglow of its offer on vaccines. It has managed to soften its image as an IPR fundamentalist and refurbished its humanitarian credentials. It speaks from a position of security because it has enough vaccines for its people and as Biden told Congress, the US intends to be the arsenal of vaccines for the world.
Getting vaccines to the rest of the world is a necessity. Vaccines are needed to protect everyone, which means as long as there are unprotected people out there in the world the US will not be safe. On the other hand, therapeutics and COVID-19-related equipment in foreign markets are not needed to protect Americans.