.American Innovation: Don’t give away our IP

Federal officials may soon decide to give away key domestic assets—American intellectual property (IP)—to our rivals. This will have profound and dangerous consequences for U.S. workers and our economy.

At issue is a proposal before the World Trade Organization. It would waive patent protections for Covid-19 tests and treatments, which would normally be guaranteed around the world under the 1995 Agreement on Trade-Related Aspects of Intellectual Property, or TRIPS.

The WTO already approved one TRIPS waiver—with support from the United States—for Covid-19 vaccines in June 2022. Advocates for that waiver, primarily China and India, claimed that, by rejecting patent rights and allowing others to make copycat versions of vaccines, the waiver would make vaccines more readily available around the world.

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However, as of today, more than enough vaccines have been made and distributed to inoculate the entire global population without anyone ever relying on the IP waiver.

Companies such as Pfizer and Merck made their innovations available to qualified generic manufacturers, thereby expanding access to those products in low- and middle-income countries. Today, largely due to these voluntary licensing agreements and the end of the pandemic, the global supply of diagnostics and therapeutics exceeds demand.

In other words, if the Biden administration decides to support an expansion of the TRIPS waiver, it will signal to American innovators and investors that research and development in healthcare is not valued and cannot reliably be protected.

Without robust protection of intellectual property, investment in American research and development will decline. The U.S. biopharmaceutical industry supports more than 4.4 million jobs. Our life sciences companies and their partners contribute more than $1.4 trillion in economic output.

One of the waiver’s principal sponsors, China, has a well-documented history of IP theft to support its domestic industry. Put simply, the Biden administration has an obligation to protect the fruits of American innovation—for the sake of our technological and economic interests, our labor force and for global health.

Brian O’ Shaughnessy is chair of the IP Transactions and Licensing Group of Dinsmore & Shohl, LLP.


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