Imagine this: The market is in dire need of a product. You have a solution. You pour hours of time and invest large sums of money into creating this product. You secure the appropriate patents and intellectual property protections needed to confidently bring your product to market. Your product is a huge success – demand far surpasses your initial ability to supply.
While working to expand production, the government tells you that, despite legally granted protections and years of research and dollars invested, they are going to compel you to turn over your recipe for making the product to companies in foreign countries so those countries can benefit from your invention.
Some would say this could never happen in America. But it is happening now.
The Biden administration has formally endorsed a World Trade Organization (WTO’s) plan to force biotechnology companies to turn over their recipes for COVID-19 innovations to countries lacking such biopharmaceutical or medical device products. This would allow these countries to use that previously protected intellectual property to manufacture their own COVID vaccines and related products without financial obligation to patent holders. In fact, the WTO proposal specifically waives provisions that would remunerate patent holders.
The policy change being advanced by WTO is known as the TRIPS (Trade-Related Aspects of Intellectual Property Rights) waiver. The belief that this policy will somehow expand the availability of reliable vaccines is not only inaccurate, but also ignores the fact that such a policy tramples the patent and intellectual property rights of the inventors.
A glaring issue related to the TRIPS waiver is the potential lack of consistency in producing the appropriated products. The fact that someone may have a recipe does not mean they can effectively follow it. If the recipe is broadly provided to others with no supervision, there is no way to ensure that the final product matches the initial standard at which it was created.
The only thing worse than having no vaccine is having a poorly made, ineffective vaccine that claims to be the same as the original, but made without the knowledge and expertise of how to follow the recipe.
To be clear, vaccine patent holders are not being stingy; many are negotiating contracts with foreign manufacturers to assist in the production of the vaccine. In doing so, they assure that the manufacturer has the requisite quality systems and know-how to follow the strict manufacturing procedures for the product. This assures the vaccine produced is trustworthy, effective and reliable.
Government confiscation of legally protected property for distribution to foreign countries is not the answer to ensuring vaccine availability worldwide. To the contrary, it is likely to hinder the process.
There is a broader picture here. While some would argue that these are extreme circumstances that call for extreme measures, it is also setting a dangerous precedent for intellectual property rights. In the future, the government will be the one to decide exactly which circumstances are sufficiently extreme to confiscate — and freely distribute — legally protected property. There is no real due process. What message does that send to the investment community that drives innovation?
Utah is one of the fastest growing life sciences communities in the country. More than 130,0000 citizens work every day producing products that address all sorts of medical conditions, many of which have been critical during the pandemic. Policies such as the proposed TRIPS waiver threaten this critical industry and the creation of life-saving medical advancements for patients.
The European Union stands firmly opposed to this wrong-headed and misguided WTO proposal. The Biden administration should follow suit and withdraw its support, respect the rule of law regarding intellectual property and work affirmatively with patent holders to increase production and availability of vaccines.
Kelvyn Cullimore Jr. | President and CEO of BioUtah
Kelvyn Cullimore Jr. is president and CEO of BioUtah, a life sciences trade association.
