Senators Call on Biden to Temporarily Waive Vaccine Patents

On Friday, Senator Bernie Sanders and a group of Democratic Senators called on the Biden administration to issue a temporary waiver of copyright rules  that are preventing countries in the Global South from locally manufacturing COVID-19 diagnostics, treatments, and vaccines.

Crucially, this would allow companies in the Global South to make clones of the Pfizer, Moderna, and Johnson and Johnson vaccines without being sued. The letter was also signed by Elizabeth Warren, Raphael Warnock, and seven other Democratic senators.

The Trade Related Aspects of Intellectual Property Rules (TRIPS) Agreement, signed in 1994 by members of the World Trade Organization, on a basic level serves to erect legal monopolies for transnational corporations with intellectual property. Since July 2020, India and South Africa have jointly pushed for an IP waiver that would let countries make whatever they need to fight COVID-19 without being blocked by other governments or corporations.

"Allowing countries to manufacture locally will expedite access to vaccines and treatment, prevent unnecessary deaths, expedite global vaccination efforts, and facilitate a stronger, faster economic recovery," the senators write in their letter. "From a global public health perspective, this waiver is vital to ensuring sufficient volume of and equitable access to COVID-19 vaccines and therapeutics around the world, which is why the waiver is supported by more than 100 nations. The TRIPS waiver is also essential to ensure all global economies, including the United States’ economy, can recover from the pandemic and thrive."

These monopoly rights have long been defended by a host of corporations and right-wing think tanks as an important incentive to spur innovation, ignoring the fact that a significant amount of scientific research and development occurs in the public sector (or is funded by taxpayers), only for its benefits to be packaged and privatized by a corporation at the tail-end. Just last year, the burgeoning push for a waiver was blocked by a coalition of WTO members led by the Trump administration; the coalition is still blocking efforts to secure an IP waiver. 

This, during the worst pandemic and global crisis in several generations.

Some stubborn industry defenses have evaporated as it becomes increasingly clear that if things continue unabated, some parts of the world will not be fully vaccinated until 2024. Moderna, for example, announced in October that it wouldn’t enforce patent rights for its vaccine, but won’t share the IP itself to make it easy for local manufacturers to help expand access. The group of senators see such moves as insufficient half-measures aimed at preserving TRIPS.

"While industry may argue that the TRIPS waiver is unnecessary, it is clear that the current flexibilities included in TRIPS are ill-suited to an urgent, global crisis,” the Democratic senators write. “TRIPS allows countries to negotiate compulsory licenses, a flexibility that was reaffirmed in the Doha Declaration. However, compulsory licenses must be negotiated by each WTO member country and for each patent or other protection applying to each individual product. This country-by-country and product-by-product approach is unworkable given the speed and global scope of access necessary to combat a global pandemic. Relying on the existing, insufficient flexibilities also subjects other countries to significant political pressures, making it harder for countries to pursue this option."

As Hyo Yoon Kang, a law professor at the University of Kent, writes protecting monopoly rights through TRIPS doesn't spur innovation or even make accessing much-needed medicines easier, it actually empowers exploitation: 

"The problems that these transnational monopoly rights cause have been well-known: patents on medical invention, in particular, have provided pharmaceutical corporations, as well as the more under the radar biotechnology companies, with the right to charge exorbitant prices, limit supply through exclusive licensing contracts, prohibit parallel imports, and extend the temporally delimited twenty years of a patent monopoly through ‘evergreening’, which only requires minor modifications of the initial invention for which the patent was obtained."

The Senators’ letter goes on to call for a global response to a global pandemic, insisting that vaccine nationalism―when countries sign agreements with drug companies to secure vaccines for their own populations ahead of others―makes no sense from a public health perspective, but also not even when adhering to the profit-seeking logic dominating some of these discussions. 

"Expanding vaccine access to developing nations is not only a moral obligation, it is economically effective. Recent data show that nationalistic vaccine policies will cost the world an estimated $1.2 trillion per year," they write. "In fact, wealthier nations have already purchased more than 53 percent of the supply of the most promising vaccines. In addition to the public funding and support they have already received, pharmaceutical companies are already seeing significant COVID-19 vaccine revenue."

All of this legitimizes the monopolies and subsidies these companies already enjoy, emboldening the pharmaceutical firms to continue price-gouging and the wealthier countries to pursue nationalistic public health policy. "To bring the pandemic to its quickest end and save the lives of Americans and people around the world, we ask you prioritize people over pharmaceutical company profits by reversing the Trump position and announcing U.S. support for the WTO TRIPS waiver."