Monday, 10 May 2021 11:00

After Long Wavering, a Patent Waiver


During last year’s presidential election campaign, candidate Joe Biden promised “absolutely” and “positively” to support the waiver of US patents to permit the unencumbered manufacture of COVID-19 vaccines in the rest of the world. Once Biden was elected, the words “absolutely” and “positively” apparently lost some of their absoluteness and positivity, becoming synonyms of “possibly” and “hopefully.” The hesitation ended on Wednesday when the US committed to back the idea of a temporary patent waiver.

The New York Times legitimately called Biden’s unexpected agreement with a principle promoted by more than 100 countries “a breakthrough,” after noting that until Wednesday the US had been “a major holdout at the World Trade Organization over a proposal to suspend intellectual property protections in an effort to ramp up vaccine production.” Biden’s representative to the WTO, Katherine Tai, nevertheless emphasized that this dramatic reversal should be thought of as exceptional: “This is a global health crisis, and the extraordinary circumstances of the Covid-19 pandemic call for extraordinary measures. The administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for Covid-19 vaccines.”



Digging a little deeper into the perspective for change, Michael Safi at The Guardian offered the Biden administration “two cheers” rather than the three The Times appears to believe it deserves. This follows from Tai’s realistic assessment of how things are likely to play out: “Those negotiations will take time given the consensus-based nature of the institution and the complexity of the issues involved.”

Today’s Daily Devil’s Dictionary definition:

Consensus-based:

Times reporters Thomas Kaplan and Sheryl Gay Stolberg remain faithful to the patented meliorist approach the paper applies to nearly all policies conducted by a Democratic president. They emphasize the constructive process now underway at the WTO in a piece that echoes The Beatles song, “Getting Better All the Time.” The Biden administration seems to be telling the world: I’m changing my scene and doing the best that I can.

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In contrast, the coverage by The Washington Post (owned by Amazon’s founder, Jeff Bezos) spends most of its ink suggesting the proposed waiver probably is fundamentally a flawed idea, leaving the impression that not much if anything will come of it. According to its pessimistic take, “Tai cautioned that the discussions to proceed with negotiations over the waiver’s text would ‘take time.’ Current and former officials said that a final agreement could differ significantly from the proposed waiver, which India and South Africa first introduced in October, and that deliberations could fall apart entirely.”

CNN more prudently highlights the fact that the US proposal “is preliminary and will not guarantee the global patent rules are lifted right away. But the Biden administration’s signal of support amounts to a major step that aid groups and Democrats had been pressing for.” It nevertheless appears to offer Biden his third cheer when it explains that the president “ultimately decided to support the waiver in line with his campaign pledge.” It quotes US Surgeon General Vivek Murthy’s claim that Biden “put people over patents.”

But CNN points clearly to the true obstacle: “Members of the WTO must unanimously decide whether to loosen the restrictions. And while the US had been a hold out, other countries — including the European Union and Switzerland — have also resisted the step.” In other words, Biden may have killed two birds with one stone. By letting Europeans do the dirty work, he could save his standing with Big Pharma — surely the main reason for his hesitation — while appearing to stay true to the progressive principle of putting people over patents. Interestingly, France’s President Emmanuel Macron may be playing the same game.

The Guardian reminds its readers that the proposal is limited to “waiving patents on Covid vaccines — but not on treatments or other technology used to fight the disease.” Whereas the US media presented the question as one of moral duty versus economic interest, both The Guardian and Al Jazeera point to the practical question implied by the waiver: “If approved, the waiver would theoretically allow drugmakers around the world to produce coronavirus jabs without the risk of being sued for breaking IP rules.” For the developing world, feeling free from an imminent attack by corporate lawyers is indeed a kind of liberation.

In other words, the proposed waiver would leave the world a long way from the optimistic scenario originally evoked by health experts and scientists in early 2020 that Alexander Zaitchik described in his exposé of Bill Gates’ influence on the WTO: “Battle-scarred veterans of the medicines-access and open-science movements hoped the immensity of the pandemic would override a global drug system based on proprietary science and market monopolies.” The idea at the time was to mobilize everyone and maximize resources. This implied patent pooling.

The health professionals facing the outbreak of COVID-19 understood both the scope of its threat and the dangers of an insufficiently coordinated organization to counter it. They also knew what the consequences of patent protection might turn out to be. The adoption of the agreement Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995 and TRIPS-plus in 1999 marked a landmark moment in the trend economists and politicians have celebrated with the term “globalization.” The specific rules applying to pharmaceuticals have been in place since 2005. In 2015, the website Infojustice highlighted the fact that the TRIPS agreement had established a regime in which “patents grant the patent holder a monopoly on the market that allows the blocking of price-lowering generic competition and the raising of prices which restricts affordable access to medicines.”

The history of the past two decades has demonstrated to the global south the risk existing patent laws represent for their health and welfare. In 2015, the United Nations Office of the High Commissioner for Human Rights drew “attention to the potential detrimental impact these treaties and agreements … may have on the enjoyment of human rights as enshrined in legally binding instruments, whether civil, cultural, economic, political or social. Our concerns relate to the rights to life, food, water and sanitation, health, housing, education, science and culture, improved labour standards, an independent judiciary, a clean environment and the right not to be subjected to forced resettlement.”

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COVID-19 changed everyone’s perception. So long as the world was not faced by a politically toxic pandemic, the developed world was free to use its superior wealth and force to impose its rules on the rest of humanity. Any serious campaign to understand the fundamental asymmetry that was continually and silently aggravating the gap between the rich and poor nations was easily stifled. Thomas Piketty could write erudite books about the gap and what was driving it. But most people in the West had bought into the belief system promoted by New York Times columnist and best-selling author Thomas Friedman, conveying the message that thanks to globalization and American technology, the world was now flat.

In an ideal scenario, the Biden administration will now begin to put pressure on Europe and Switzerland to emulate America’s courage in backing the proposed waiver. It will also pressure US vaccine providers to share their technology and know-how with the rest of humanity by convincing them to show not just their leadership but also their commitment to human health above profit. With or without patent protection, there is no danger of their becoming unprofitable, not with the power they have and an ever-expanding marketplace for health. But what we are witnessing, as they resist even temporary waivers, is the rentier’s obsession with automatically induced maximum profit making the question of health benefits a secondary consideration.

In the months to come, the world will be attentively observing the political and economic games now being played out. At some point, COVID-19 will begin to fade away. The world will then face the fear of the next contagion and perhaps begin seriously to struggle with a strategy to counter the effects of climate change. Awareness of the stakes is already much higher than in the past. It is time for the political class to begin assessing the risk that represents for their own future.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.