OPINION:
December 17 came and went. An epic heist had been planned. The Word Trade Organization (WTO) has been weighing the largest government-sponsored theft of intellectual property in history.
But it didn’t happen.
The debate is over whether to “expand” a waiver agreed upon last June on the patents covering Covid-19 vaccines. The waiver, which had originally been shockingly broad in scope, was pared back to vaccines once the decision had been made to consider diagnostics and therapeutics within six months.
That deadline — December 17 — was always a bit of a mystery. Some viewed it as the date by which a vote on the waiver’s expansion would take place. Others saw it as a deadline for thinking about whether to do anything at all. Recently, the United States came out in support of extending the debate for another six months. Katherine Tai, the U.S. Trade Ambassador, said that “[r]eal questions remain on a range of issues….”
Those issues are summarized in a three-page review of consultations held with two dozen stakeholders, both public and private. It’s quite the read. It notes, first and foremost, that proponents of expanding the waiver “have longstanding critiques” of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and that Covid-19 is “the latest in a series of global health challenges” that inspires them to oppose intellectual property as “a matter of principle.”
The survey also reports that proponents admit that there’s no shortage of diagnostics and therapeutics but speculate there might be latent demand. They also worry existing “flexibilities” in the TRIPS agreement that concern compulsory licenses “are untenable” for “some Members,” a point that is asserted rather than reasoned (and is incorrect). And that’s it. The rest of the summary of views expressed by proponents concerns how to expand the waiver, not whether it should be expanded.
As for critics of expanding the waiver, the summary reports that they don’t see intellectual property as a “barrier to accessing” diagnostics and therapeutics, argue that voluntary and compulsory licenses are more than up to the task of helping even the poorest countries; and that any expansion would simply further the industrial policy ambitions of countries like China, which have been eager to widen the definition of the technologies in the mix.
To make sense of it all, the Biden administration has instructed the U.S. International Trade Commission to study the “market dynamics” at play, including those that impact “production and access.” A study will invariably shed light on this debate. Still, it’s remarkable that the United States has taken so long to show interest in bringing logic and evidence to a discussion it has championed to date.
Several other countries are a step ahead of the United States in studying these issues and have come out in opposition to expanding the waiver.
In a recent communication to the WTO, for example, Mexico and Switzerland explain that the “[a]vailable information shows that no shortage of therapeutics exists.” On diagnostics, they note “there is a high level of product surplus to order” and argue that the remaining challenges “are not IP-related.” Accordingly, they insist that “no adjustments to the IP system seem to be required.”
The truth is that poverty, not patents, limits access to vaccines, diagnostics and therapeutics. While it is undoubtedly easier to suspend patents rather than re-double efforts to fight poverty, this doesn’t mean expanding the waiver will accomplish anything. On the contrary, the only thing an expanded waiver will do is undermine the preparedness of rich and poor countries alike to deal with the next pandemic.
- Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service, Georgetown University. Follow him on Twitter @marclbusch.
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