Sen. Tillis Asks Biden Administration to Oppose WTO Waiver Proposal

McDonnell Boehnen Hulbert & Berghoff LLP

McDonnell Boehnen Hulbert & Berghoff LLP

Last month, the Biotechnology Innovation Organization (BIO) and Pharmaceutical Research and Manufacturers of America (PhRMA) sent separate letters urging the Biden Administration to join the European Union, United Kingdom, Japan, Canada, Switzerland, Brazil, and Norway in opposing a proposal made by India and South Africa to have the World Trade Organization (WTO) waive the implementation, application and enforcement of certain provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement with respect to the prevention, containment, or treatment of COVID-19.  A group of fifteen industry and trade organizations (including BIO and PhRMA) followed with their own letter to several members of the Biden Administration, opposing what the coalition called "a problematic proposal" to waive global IP protections.  And then, a group of intellectual property organizations sent a letter to several 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.  One of the recipients of that last letter was Sen. Thom Tillis (R-NC), the Ranking Member of the Subcommittee on Intellectual Property.

Last week, Sen, Tillis (at right) sent his own letter to members of the Biden Administration, asking that the Administration "oppose any and all efforts aimed at waiving intellectual property rights."  Calling the waiver a "disastrous" proposal (not once, but three times), Sen. Tillis expressed his concern that "the Biden Administration is being urged to support this broad and open-ended waiver in the mistaken belief that it will promote broader access to vaccines needed to halt the spread of this terrible pandemic," while arguing that the proposed waiver "would do nothing of the sort."  Instead, Sen. Tillis contends that the waiver "would undermine the extraordinary global response that has achieved historically remarkable results in record time and undermine our nation's global leadership in the technologies, medicines, and treatments of the future."

In his letter, which was addressed to Gina M. Raimondo, Secretary of Commerce, and Katherine C. Tai, U.S. Trade Representative (both of whom received the industry and trade organizations' letter), Sen. Tillis argued that the "disastrous TRIPS waiver can do nothing to speed the development of new capacity, which requires the active cooperative involvement of the vaccine originator companies, which need to transfer not just patents but specific know-how."  The letter states that such a complex technical and logistical process "is best coordinated collectively," and asserts that the waiver would not be an efficient means of creating new global manufacturing capacity.

The Senator also noted that the proposed waiver contains no time or technology limits, and therefore is not limited to vaccines.  According to Sen. Tillis, "[t]his means that foreign nations -- nations which did not invest in the research and development of revolutionary vaccines and treatments -- can demand any technology with the loosest connection to COVID without recourse."  As a result, Sen. Tillis contends that the waiver's main impact would be to legitimatize the transfer of American technologies to foreign competitors, which in turn "would allow for the creation of entire industries in these countries that will compete with American companies in the development of cutting-edge health care technologies."

The Senator concludes his letter by declaring that "it makes no sense for the Biden Administration to support the disastrous waiver of all intellectual property rules that would allow our foreign competitors to gain free and unfettered access to our most advanced technologies," adding that it would be "virtually impossible to undo [the broad transfer of technologies] in any future trade negotiations over intellectual property rights."

For additional information regarding this topic, please see:

• "IP Organizations Support Continued Opposition to Waiver Proposal," April 5, 2021
• "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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