Industry Coalition Supports Continued Efforts to Oppose Waiver Proposal

McDonnell Boehnen Hulbert & Berghoff LLP

McDonnell Boehnen Hulbert & Berghoff LLP

Earlier today, a group of fifteen industry and trade organizations sent a letter to five members of the Biden Administration, to express their strong support for the Administration's work to leverage international mechanisms to help address COVID-19 and also for the Administration's continued efforts to oppose "a problematic proposal at the World Trade Organization to waive IP global protections," which would "remov[e] patent, industrial designs, copyright, and trade secret protection for any products and services so long as they can be tied to COVID-19."

The letter's signatories included the Advanced Medical Technology Association (AdvaMed), Biotechnology Innovation Organization (BIO), Incubate Coalition, Latino Coalition, National Association of Manufacturers (NAM), National Foreign Trade Council (NFTC), National LGBT Chamber of Commerce (NGLCC), National Puerto Rican Chamber of Commerce, Pharmaceutical Research and Manufacturers of America (PhRMA), Small Business & Entrepreneurship Council (SBE), Software and Information Industry Association (SIIA), Telecommunications Industry Association (TIA), U.S. Chamber of Commerce, U.S. Council for International Business (USCIB), and U.S. Pan Asian American Chamber of Commerce (USPAACC).  The coalition's letter was addressed to Gina M. Raimondo, Secretary of Commerce; Katherine C. Tai, U.S. Trade Representative; Brian Deese, Assistant to the President for Economic Policy; Jeffrey Zients, Coordinator of the COVID-19 Response and Counselor to the President; and Jacob Sullivan, Assistant to the President for National Security Affairs.

The letter begins by noting that "[n]o country will be safe, until the virus is controlled everywhere, including at home and abroad, in developed and developing countries," and acknowledging "robust U.S. leadership" in global efforts to ramp-up the development and manufacturing of COVID-19 supplies and treatments to defeat the pandemic.  The coalition states that the U.S. "has led the world in promoting policies that advance scientific innovation, improve global health, and foster economic growth," and points out that "[t]hese policies have created R&D-intensive industries that contribute $6 trillion towards the U.S. gross domestic product and support approximately 45 million U.S. jobs in all 50 states."

The letter also commends the country's innovative companies for responding to the COVID-19 pandemic by "leverage[ing] their extraordinary R&D capacity to launch the unprecedented development and delivery of diagnostics, medical equipment, treatments, vaccines, digital tools, and information sharing faster than ever before."  The coalition suggests, however, that this response would not have been possible without a robust IP environment in the U.S.  The coalition also expresses support for one of the Administration's most recent COVID-19 vaccine global initiatives -- joining with Australia, India, and Japan to expand manufacturing and distribution of COVID-19 vaccines in the Indo-Pacific region.

Turning to the WTO waiver proposal (which we discussed here), the coalition writes that:

Unfortunately, some countries have chosen this moment to pursue their longstanding goals to weaken IP rights, including through a problematic proposal at the World Trade Organization to waive IP global protections.  This waiver is as vague as it is broad, removing patent, industrial designs, copyright, and trade secret protection for any products and services so long as they can be tied to COVID-19.  Proponents of the waiver have claimed, without evidence, that it would advance public health.  In reality, the waiver would undermine the global response to COVID-19 and would not achieve its stated goal to rapidly expand vaccines production.

The letter adds that the WTO waiver proposal distracts from addressing the manufacturing and logistical issues that constitute "[t]he greatest barriers to faster global access to vaccines and therapies."

The coalition concludes its letter by expressing support for "the Administration's global leadership and collaboration with key global vaccine mechanisms, consistent focus on efforts to identify and eliminate the real barriers to end the pandemic and ensure faster global vaccination, and continued efforts to oppose this waiver."  The letter also encourages the Administration to continue to oppose the WTO waiver proposal, and to continue to work with Japan, the European Union, the United Kingdom, Switzerland, and Brazil "to foster a more productive, comprehensive conversation" with WTO Director-General Ngozi Okonjo-Iweala "about ensuring equitable access to COVID-19 products by tackling trade barriers."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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