On TRIPS waiver extension, America must stand up — not stand by

By Andrei Iancu and David Kappos

A joint WTO communication released by Mexico and Switzerland earlier this month reveals just how senseless a proposed patent waiver for Covid-19 diagnostics and therapeutics is — and just how far the United States has retreated from global leadership on IP.

The letter, addressed to the WTO’s TRIPS Council, comes just weeks before a critical deadline in the debate over the waiver. By December 17, WTO members must decide whether to extend the current TRIPS waiver on Covid-19 vaccines to diagnostics and therapeutics.

Mexico and Switzerland rightly understand that such an extension would be, at best, completely futile — and at worst, ruinous.

Proponents of the extension claim it is necessary to increase access to Covid-19 tests and treatments. But a wealth of data, outlined in the communication, show that no shortages exist. In fact, diagnostics manufacturers have reported large surpluses of tests available for order.

Governments and NGOs, meanwhile, have large stockpiles of treatments going unused, according to the letter. As of September, they had administered just 10 million of the 35 million doses they bought for distribution in low- and middle-income countries.

Mexico and Switzerland also note that manufacturers are operating well below production capacity due to lack of demand for Covid-19 antivirals. And companies have already inked more than 138 voluntary licensing agreements, allowing generics manufacturers to produce their therapeutics in 127 countries worldwide.

The evidence is clear. Patents are not restricting access to Covid-19 therapeutics, nor diagnostics. As a result, the communication concludes that “no adjustments to the IP system seem to be required.”

Mexico and Switzerland warn that pursuing the waiver extension nonetheless would “have a detrimental effect and leave us ill-equipped to fight the Covid-19 pandemic and potential future pandemics effectively…because inventors would have no incentive to shoulder the risks and costs associated with R&D.”

It’s a statement that might have come from the United States in the not-so-distant past. America was once a champion of IP protections around the globe. Its leaders understood that such protections have played a critical role in making the U.S. the most innovative country on Earth.

But our global leadership on IP has diminished. The United States backed the original TRIPS waiver for vaccines last summer, even though no shortage of vaccines existed. As Mexico and Switzerland point out, not one nation has used the waiver to increase supply of vaccines since members agreed to the proposal.

The United States is once again standing by as other nations lead in sounding the alarm about the dangers of a baseless waiver extension. It’s time to re-establish our credibility and begin stepping up to reclaim leadership by opposing the TRIPS proposal.

Andrei Iancu and David Kappos are Co-Chairs of the Council for Innovation Promotion. They previously served as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office from 2018-2021 and 2009-2013, respectively.

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