By Michael Rosen

The ongoing debate over whether to suspend global intellectual property (IP) rights for the various COVID-19 vaccine patents is about to boil over, as the World Trade Organization (WTO) girds for a high-stakes meeting next week.

In May 2021, United States Trade Representative Katherine Tai proclaimed that the Biden administration favored a proposal submitted to the WTO by South Africa and India that would relax Trade-Related Aspects of Intellectual Property Rights (TRIPS) protection for COVID-19 vaccines developed by leading pharmaceutical pioneers, thus reversing previous American policy. The idea was to allow generic manufacturers to quickly and cheaply produce vaccine doses that could reach the Global South.

As explained in this space, the policy change aroused controversy throughout the biotech and IP worlds, with many observers highly critical of the proposal and deeply skeptical that it would swiftly result in more shots in arms, calling instead for existing vaccine manufacturers to accelerate production of doses and for Western governments to subsidize their delivery to the developing world. The critics’ predictions mostly proved correct, as more than a year has elapsed and several COVID-19 variants have come and gone without resolution on the waiver issue. But that may change next week, as the WTO’s ministerial committee meets in Geneva to debate a draft compromise agreement hammered out by the “quad” of the US, the EU, South Africa, and India that emerged in recent months.

According to the terms of that draft, TRIPS protections on COVID-19 vaccines (but not on treatments or diagnostics, as the original South African and Indian proposal demanded) would be suspended for the duration of the pandemic, enabling generic manufacture by any developing country that exported fewer than 10 percent of vaccine doses in 2021. Notably, this final proviso would exclude China from the waiver, as it exported significant quantities of its Sinovax vaccine in 2021.

An initial WTO meeting about the compromise in early May “went very well,” the Sierra Leonean delegate heading the council charged with considering the TRIPS waiver told Reuters, as “no member rejected the outcome as completely unacceptable.” But the British and Swiss delegations reportedly remained unsupportive, while China labeled the 10 percent exception “an unreasonable and arbitrary criterion.” The Chinese objection “could sink a deal that many view as a critical test of the WTO’s relevance,” according to Bloomberg.

Meanwhile, leftist activists lament that the agreement doesn’t go far enough. Excoriating “vaccine apartheid” and “vaccine profiteering” while insisting that “companies’ intellectual property rights should not be allowed to trump people’s health rights,” one University of Ottawa professor announced his own opposition to the compromise, noting that it was “worse than no waiver.”

Later in May, Politico reported that the compromise negotiators were “distancing themselves from the agreement they’ve worked on,” quoting a trade diplomat who fretted that “the fact that there’s no ownership by India, South Africa, the US and the EU really complicates things.”

Further complicating things is the acknowledgment last month by WTO Director-General Ngozi Okonjo-Iweala that “we have some surplus production, and we have some distribution problems and some vaccine hesitancy and apathy.” Indeed, the director-general may have put her finger on the key challenges that have stalled global vaccine deployment. IP rights are not what caused South Africa to discard 100,000 expired doses in March or forced Kenya to destroy more than a million. IP rights are not what prevent developing countries from building supply chains capable of handling the refrigeration and deep-freezing needed to transport sufficient vaccine quantities. But IP rights are what empowered the pharmaceutical industry to effectively transform the pandemic into a still-dangerous but now mostly endemic situation, including by making more than 12 billion doses already and producing another 20 billion in 2022.

In any event, many of these issues will be hashed out next week in Geneva, where fireworks are expected.

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