TRIPS waiver – academic arguments

IP Draughts has previously asked, on this blog, how the proposed TRIPS waiver would assist in the delivery of Covid 19 vaccines to developing countries.

Now there appears an answer, in the form of an academic open letter that has been signed by “over 100 international IP academics”. The letter can be found here.

Reading through this letter, IP Draughts continues to be puzzled. The letter makes plenty of interesting points, but fails, in his view, to “join the dots” and explain how the waiver, per se, will result in the delivery of vaccine to developing countries. Those points (some of which appear to IP Draughts to be bald assertions) include:

1. IP rights must serve the public interest.
2. IP rights and “monopolies over …information” are implicated in the lack of global capacity and their inequitable distribution.
3. A voluntary donation scheme has had very little success.
4. A voluntary technology access pool has had very little success.
5. Invitations to collaborate from companies such as Teva have not had a positive response from vaccine IP holding companies.
6. Distribution of existing vaccine stocks has been “profoundly unequal”.
7. Suspending rules under TRIPS is crucial to a radical increase in manufacturing capacity [why? how?]
8. The waiver would provide more companies with freedom to operate without fear of IP infringement.
9. Public funding of vaccines should be considered when deciding on the protection given to IP rights holders.
10. The IP system has failed to create market incentives for vaccine development, even with public funding.
11. Existing provisions in TRIPS are not sufficient.
12. Compulsory licences do not address the need for technology transfer and sharing of know-how to build local capacity. Building capacity would be good for this and future pandemics.
13. Governments should work with IP holders to make trade secrets available. There are precedents for this, eg in World War II production of penicillin.
14. A TRIPS waiver is a necessary ingredient in a multi-pronged approach. Other steps include global coordination of supply chains, streamlining regulatory approvals, sharing exclusive data, investment in technology transfer hubs.
15. A TRIPS waiver will facilitate the technical resilience of developing countries in present and future pandemic action and preparedness.

Readers may agree with several of the above points, as does IP Draughts, particularly points 1, 3, 4, 6, 9, 10, and 12. But where is the evidence that IP rights are the root cause of the problem – preventing vaccine manufacture and distribution to developing countries? Perhaps other issues are more important, such as those mentioned in point 14. The University of Kent web page that provides a link to the letter, above, states that the letter provides an “academic justification” for the waiver. In IP Draughts’ opinion, the thesis lacks rigour.

Podcast of this article here.