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Don't Compromise American Innovation

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/Ted Jackson

In the sad light of over 1 million Covid-19 deaths in the United States comes news that the Biden Administration wants to sign away the intellectual property rights of creators of the Covid vaccines.


This agreement among some at the World Trade Organization (WTO) should send a chill down the spine of every American. That's because the reason U.S. pharmaceutical companies were able to produce and manufacture vaccines in record time -- saving millions of lives around the world -- is the long-standing U.S. commitment to IP protection.

Piercing that protection now will not yield any material benefit to the fight against Covid. But it will leave America and the world more vulnerable to the next pandemic. If we make IP less dependable and less valuable, America will produce less of it -- a dangerous folly when our 21st century prosperity, security, and health all depend on technological innovation.

The WTO started fielding petitions to waive commitments under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement to protect IP on Covid technologies even before any vaccines were approved or access concerns of poor nations were raised. The reality is that long before vaccines were available, governments and charitable organizations pre-ordered billions of doses. By early 2021, the Covid vaccine manufacturers had already entered into hundreds of partnerships all over the world to voluntarily produce as many vaccine doses as possible. By the end of the year, more than 11 billion doses had been manufactured -- and there is capacity to produce more than an additional 20 billion doses in 2022.

So prolific was global production that in February 2022, the largest vaccine manufacturer in the world, the Serum Institute of India, announced it would stop making doses until new orders came in. The same month, the African CDC asked the world to pause donations because even the least developed nations had more than they could distribute.


By now, it's crystal clear that the pursuit of this TRIPS waiver has little to do with the pandemic. Rather, it's all about global virtue-signaling. The Biden administration likes the optics of appearing sacrificially generous. In exchange for some positive headlines in international newspapers, however, America is risking the legal framework that is responsible for producing the vaccines and treatments against Covid-19 in the first place.

Pharmaceutical research -- like health care generally -- has become a high-tech business. The molecules and biological delivery systems that comprise medical breakthroughs today are extremely difficult to invent, as is the manufacturing technology. Taking the many inevitable failures into account, it costs on average more than $2 billion to research, develop, and win approval for a new drug.

These are risky investments. Making a return on them depends on the integrity of IP protection. Without it the billions of dollars investors are now pouring each year into cancer, Alzheimer's, and diabetes treatments will dry up.

Patent infringement doesn't just injure the victimized inventor; it corrupts America's uniquely valuable innovation economy. Countries with weaker IP protections have less R&D, fewer innovations, and less developed technology. America's IP alone is valued at more than $6 trillion, larger than every other economy in the world -- except China, which of course is the world's greatest IP thief.  

Health care today is IP, as is software, tech, national security and cybersecurity.  Without IP protections, the things that keep us healthy, safe, strong, and prosperous today won't be here for our children tomorrow.


That is what President Biden risks with his TRIPS "compromise" on Covid-19 vaccines. Proponents of the reported scheme say it's pared back -- that is, it's not as bad for America as the original petition. But why we should tear even a small hole in IP protection for American innovation, setting a dangerous precedent, is entirely unclear in this context?

As this tear continues to rip, more investment will dry up, more laboratories will shutter, more diseases will go uncured, and more foreign adversaries will close their technology gaps with us.

The Covid vaccines TRIPS waiver, even in its modified form, will do little good for the world, but great harm to the United States.

Paul R. Michel served on the United States Court of Appeals for the Federal Circuit from 1988 to his retirement in 2010, and as its chief judge from 2004 to 2010.

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