Critics Of Patent Waivers Are Claiming They Were Right... Despite No Patent Waiver Actually Issuing Yet

from the say-what-now? dept

We were surprised, but pleased, when the US announced plans to support a patent waiver for COVID-19 treatments and vaccines (over Hollywood's strenuous objections). As you'll recall, the TRIPS agreement (an onerous, oppressive set of "intellectual property" rules that many countries have agreed to) includes a "waiver" process, in which the WTO will effectively waive international patent protection on certain patented items in an emergency situation. The COVID-19 crisis seemed to fit the exact intent of the waiver process, and yet there's been a lot of pushback from patent and copyright maximalists who hate the very idea of waiving copyright or patent monopoly rights on anything for any reason at all.

Many of those against the waiver insisted that their reason for being against the waiver is that it wasn't patents that were holding up vaccines and treatments, but larger supply chain issues. They ignore, of course, that some of those supply chain issues are also because of overly aggressive intellectual property laws, or that both things can be true. Either way, Michael Rosen, who insisted that a waiver was a terrible idea, has now penned a piece for The Hill insisting that his view has proved correct because the waiver process has done nothing to help deal with COVID-19.

Of course, the reason it's done nothing is because people like the author have been getting groups to protest the waiver and so it hasn't even been approved yet. I mean, the piece even admits that the problem here is not the waiver, so much as the slowness of the WTO in approving it.

... the WTO is uniquely unsuited to move quickly on the proposal given its bureaucratic and consensus-driven nature. Opposition to the waiver proposal in late July, primarily from the European Union (EU), has delayed further discussion until at least October, because “disagreement persisted on the fundamental question of what is the appropriate and most effective way to address the shortage and inequitable access to vaccines and other COVID-related products.” By the time the TRIPS waiver receives proper consideration, the Delta wave may have passed.

But... that's not an argument against the waiver. It's an argument for the WTO to get its shit together, and for people to stop trying to oppose the damn waiver.

The other two reasons Rosen gives are no better.

First, the suspension of intellectual property (IP) rights will not quickly deliver shots in arms in the developing world, as the past four months have amply shown.

No one is saying that's the only thing that needs to be done -- but, also, how the hell can you say that it won't deliver shots when the waiver still hasn't come to pass yet?!?

... generic manufacturers cannot simply flip a switch and begin producing doses; instead, they must master the formulation of complex compounds (some of which involve mRNA), and their medicines must undergo local regulatory scrutiny for safety and effectiveness.

Yeah. You know what would help them get the ball rolling so that they can get those processes up and running sooner? Not having to worry about bogus patent infringement claims.

And, of course, this kind of thing wouldn't be complete without a bogus claim of the great innovation incentive that patents bring.

Finally, the suspension of vaccine-related IP rights fundamentally undermines the global innovation regime that brought us these miraculous drugs in the first place — wildly effective vaccines developed in absolute record time.

That's bullshit. The incentive to produce these vaccines was not patents, but saving the damn world. Second, the first of those vaccines, from Moderna, was developed in just two days because Chinese researchers uploaded the details of the coronavirus and made it openly available to researchers, rather than locking it up. In other words, it wasn't locking down information with patents that got us this vaccine, it was the opposite.

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Filed Under: covid, ip waiver, patent waiver, patents, trips, vaccines, wto