IP Organizations Support Continued Opposition to Waiver Proposal

McDonnell Boehnen Hulbert & Berghoff LLP

McDonnell Boehnen Hulbert & Berghoff LLP

Late last month, a group of intellectual property organizations sent a letter to members of Congress and officials at the Patent and Copyright Offices to express their support for the United States' continued opposition to the TRIPS waiver proposal being discussed at the World Trade Organization (WTO).

The letter's signatories included the American Intellectual Property Law Association (AIPLA), Intellectual Property Owners Association (IPO), Licensing Executives Society (USA and Canada), Inc. (LES USA-Canada), and New York Intellectual Property Law Association (NYIPLA).  The group's letter was addressed to Sen. Patrick Leahy (D-VT), Chairman of the Senate Subcommittee on Intellectual Property; Sen. Thom Tillis (R-NC), Ranking Member of the Subcommittee on Intellectual Property; Rep. Henry C. "Hank" Johnson (D-GA), Chair of the House Subcommittee on the Courts, Intellectual Property, and the Internet; Rep. Darrell Issa (R-CA), Ranking Member of the Subcommittee on the Courts, Intellectual Property, and the Internet; Drew Hirshfeld, Performing the functions and duties of the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office; and Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office.

The organizations begin their letter by declaring that they "strongly support equitable, widespread, and successful distribution of vaccines, medicines, diagnostics, personal protective equipment, and other measures necessary to meet the challenges of COVID-19," and by noting that the intellectual property rights of their members "have fueled the innovation that has allowed us to combat COVID-19."  The letter also points out that IP system "will continue to fuel the next generation of solutions."

With respect to the WTO waiver proposal (which we discussed here), the group argues that the proposal "incorrectly portrays IP as a barrier to rapid innovation, R&D collaboration, and ample manufacturing of COVID-19 technologies," which the organizations state is contrary to the experience of their members.  The organizations also state that they "know of no data to suggest that patents and other IP rights are hindering vaccine development or delivery."  With regard to IP rights related to testing, treatments, and personal protective equipment, the group reiterates that "[w]e are not aware of any examples where IP has been used to limit access to COVID-related technology ‒ rather innovator companies have partnered and shared IP to create tools to address this pandemic."

The letter also notes that the manufacturing of COVID-19 vaccines is a complicated process, and cautions that "[p]oor quality vaccines being produced by underqualified manufacturers could have extreme negative consequences."

The organizations conclude their letter by arguing that "should the proposed TRIPS waiver be implemented, it would have an immediate chilling effect on their continued research and collaboration needed to overcome, for example, new variants of the virus, to create vaccines for children, and to develop better delivery mechanisms."  The group therefore "urge[s] the U.S. to continue its opposition to the TRIPS waiver proposal."

For additional information regarding this topic, please see:

• "Industry Coalition Supports Continued Efforts to Oppose Waiver Proposal," March 29, 2021
• "BIO and PhRMA Urge Biden Administration to Oppose Proposed WTO TRIPS Waiver," March 11, 2021

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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