I am deeply concerned about the situation in India and other countries hit hard by COVID-19, and I share the goal of getting safe, effective vaccines to as many people as quickly as possible. But the best way to help these countries is for the Biden administration to continue lifting its export restraints. FILE – In this Dec. 29, 2020, file photo, Pat Moore, with the Chester County, Pa., Health Department, fills a syringe with Moderna COVID-19 vaccine before administering it to emergency medical workers and health care personnel at the Chester County Government Services Center in West Chester, Pa. Moderna says its COVID-19 vaccine strongly protects kids as young as 12. The company released the preliminary findings Tuesday, May 25, 2021, based on testing on more than 3,700 12- to 17-year-olds in the United States. (AP Photo/Matt Slocum, File) Matt Slocum/AP
Protecting US ingenuity and intellectual property
Sen. Mike Crapo June 11, 12:00 AM June 11, 12:00 AM
I am deeply concerned about the situation in India and other countries hit hard by COVID-19, and I share the goal of getting safe, effective vaccines to as many people as quickly as possible. But the best way to help these countries is for the Biden administration to continue lifting its export restraints.
We will soon have a surplus of vaccines that we can export to redress the situation in multiple countries, and this does not require undermining American innovation or congressional authority. The administration failed to give serious attention to some vital U.S. interests when it announced its support for waiving the operation of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights to address the COVID-19 crisis. Regrettably, opportunists (including China and Russia) are thrilled at the prospect. And there is no evidence that this waiver will increase global vaccine production, but substantial evidence it could undermine it.
The TRIPS Agreement is a congressionally approved trade agreement requiring WTO members to respect one another’s intellectual property rights, including patents for vaccines and other medical innovations. The United States, at the direction of Congress, was the driving force for this agreement, based on its innovation leadership. That leadership is due in major part to our founders, who gave Congress the power in the Constitution to bestow intellectual property rights in order to “promote the Progress of Science and useful Arts.” They were proven right, again, when America’s pharmaceutical companies brought to fruition highly effective, life-saving COVID-19 vaccines in under a year. This was indeed an extraordinary feat to be applauded as life begins to normalize around the country.
The U.S. produced this medical marvel, and many like it, because of our strong IP protections. There have been no credible arguments that these protections are hindering vaccine access around the world. Many key U.S. allies share this view. Germany’s Chancellor Angela Merkel has been blunt that a waiver of patent rights would not further production, but actually cause “severe complications.” On the other hand, key supporters of the waiver include Russia’s Vladimir Putin and others who have supported undermining IP for years.
So, why did the U.S. trade representative announce the administration would support waiving U.S. IP rights at the WTO? How will this expand global vaccine access when it takes years to establish quality manufacturing facilities? Won’t this compromise already stressed supply chains by having inexperienced manufacturers enter the market? What does it mean for national security when China and Russia are actively trying to steal U.S. vaccine technology? How would it affect our own domestic industry and efforts to bring more medical supply chains home? And how is any of this legal since the governing statute only allows the U.S. to withdraw from TRIPS “if and only if” Congress passes a resolution to that effect?
These questions remain unanswered by U.S. Trade Representative Katherine Tai, who did not consult with Congress before making the announcement. Time constraints did not preclude her from doing so. She has, in fact, noted that the “negotiations will take time.” The WTO director-general is targeting December for any outcome from these negotiations, which presents another question: Why is a TRIPS waiver needed in advance of an expected large surplus of vaccines to export as soon as this summer? The failure to consult is all the more striking because it is at odds with President Joe Biden’s emphasis that we “have to prove that democracy works.” Let’s prove it on the issue of the TRIPS waiver.
My Senate colleagues and I have a better approach. We introduced legislation requiring an in-depth assessment of a TRIPS waiver to ensure it actually achieves its goal without unintended consequences before it is adopted. If an analysis determines that the waiver would make a major difference, we could consider it on those terms. If not, we should consider policies (like promoting U.S. exports) that we know would help other countries in need. The legislation also requires the administration to consult with Congress, similar to the negotiation process for TRIPS and other free trade agreements, before it proceeds. Finally, and most importantly, the legislation would guarantee the administration a vote on any outcome it reaches. This approval vote would be similar to the fast-track procedures we use to approve free trade agreements and not subject to a filibuster.
Crucially, any waiver should not extend to China and Russia, which have produced their own vaccines and are engaged in widespread technology theft. The U.S. Department of Justice issued indictments last summer against Chinese-backed hackers trying to steal Moderna’s research. The U.S. should not condone this bad behavior and allow China and Russia to profit off Americans’ hard work.
This best path forward expands global vaccine access in a way that would not undermine American democracy and ingenuity.
Mike Crapo is the senior senator from Idaho.
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