Op-Ed: Waiver of patent rights will make us less prepared for the next pandemic | Opinion


The World Trade Organization (WTO) recently published the text of a proposal to suspend patents on COVID-19 vaccines. All WTO members will vote on the proposal in June.

The text will only take effect if the 164 members sign. But if approved, companies in developing countries will be allowed to use medical technology from American companies and inventors without their consent or oversight.

Waiver of patent rights would harm not only the American companies that developed the COVID-19 vaccines, but also the biopharmaceutical industry, medical innovation and the American economy as a whole. And invalidating intellectual property rights would not solve the real problem that advocates of the waiver say they want to solve: low vaccination rates in developing countries.

The governments of India and South Africa, which first applied to the WTO for a patent waiver in 2020, insist that suspending intellectual property rights will spur manufacturing and thus get more gunshots. It is simply not true.

According to analytics firm Airfinity, around 12 billion doses of the COVID-19 vaccine have been delivered so far, and global production capacity for 2022 is 20 billion. That’s over four doses for every person on the planet.

Doses accumulate unused. In February, the Africa Centers for Disease Control and Prevention stopped accepting vaccine donations because their stocks are full and the excess supply could expire. India’s largest drug maker, the Serum Institute, has stockpiled 200 million doses and halted production until new orders come in.

The problem is not production, it’s distribution. Some of the real challenges hampering the distribution of vaccines are public skepticism and lack of infrastructure. Well-executed foreign aid could help expand access.

But we won’t solve any of these challenges by overturning intellectual property rights. On the contrary, it would compromise global public health for decades to come.

At the simplest level, a patent protects an inventor’s right to manufacture and sell his product for a specified period. A patent does not guarantee commercial success; rather, it encourages inventors to risk time and money to develop products that may or may not succeed.

America’s strong intellectual property protections are the reason so much innovation takes place in the United States. Notably, strict intellectual property laws have encouraged years of research into messenger RNA, the technology underlying COVID-19 vaccines made by Pfizer and Moderna.

If we revoke vaccine patents, we won’t just punish the companies that provided these life-saving vaccines. We will also undermine the smaller biotech companies that have licensed their breakthrough technology to these larger vaccine-producing behemoths. And we will reduce investment in drug development as a whole.

Before entering into an international patent rights waiver agreement, the Biden administration should consult with Congress and the United States Patent and Trademark Office (USPTO), the agency responsible for protecting intellectual property. Former USPTO directors – from the Obama and Trump administrations – have come out strongly against the patent waiver.

Some of those advocating for a patent waiver may genuinely want to increase access to vaccines and improve global public health. But if the current proposal becomes international law, it will distract from the real solutions. And it will undermine our ability to fight the disease in the future.

Frank Samolis, Attorney, is Partner and Co-Chair of the International Trade Practice at Squire Patton Boggs. Previously, Frank served as an advisor to the Commerce Subcommittee of the U.S. House of Representatives Ways and Means Committee. The opinions expressed here are his own. This piece originally appeared in the Detroit News.

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