Tillis Pushes Tai Again on TRIPS IP Waiver Proposal, as South Africa Asks to Delay Delivery of Vaccines

Yesterday, Senator Thom Tillis (R-NC), the Ranking Member on the Senate IP Subcommittee, wrote to Ambassador Katherine Tai, the United States Trade Representative who is responsible for negotiating an IP Waiver to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement with the World Trade Organization (WTO). This TRIPS IP Waiver is generated by proposals submitted by South Africa and India and seeks the waiver patent and trade secret protections relating to COVID-19 innovations. This is the fifth such letter Tillis has sent Tai.

As noted by Senator Tillis and many commentators, including here on IPWatchdog, the proposed TRIPS IP Waiver is nothing more than an attempt to steal intellectual property rights covering important innovations that took nearly a generation to bring to fruition. And now we have definitive proof.

South Africa’s Surplus Exposes the Real Problem

Even as the WTO is presently working with nations sympathetic to the South African and Indian proposal, including the United States government, which has shockingly announced that it supports the forced transfer of property rights from innovators to everyone, we learn that South Africa has more vaccine than they can use.

According to Reuters, “South Africa has asked Johnson & Johnson and Pfizer to delay delivery of COVID-19 vaccines because it now has too much stock, health ministry officials said, as vaccine hesitancy slows an inoculation campaign.”

“Clearly their desire for a TRIPS waiver has less to do with vaccination efforts and more to do with their long-standing efforts to steal American intellectual property by forced technology transfer,” wrote Senator Tillis after learning that South Africa, which started the push for the waiver related to COVID-19 vaccine technologies and innovations, has a vaccine surplus.

“The fundamental assumption that intellectual property is a barrier to production and sharing vaccines is wrong,” Tillis’ letter goes on, which is obviously true given the abundance of supply of vaccine. If patent and other intellectual property rights were, in fact, a barrier, there would not be a surplus to the point where South Africa is asking for shipments to cease. To the contrary, if patents and other forms of intellectual property were a barrier to production and sharing of vaccines there would be a shortage, which is not the case.

“The Administration’s misplaced focus and politicization of this critical issue poses grave risks. By undermining property rights, the United States risks jeopardizing our ability to respond to the next pandemic because American companies and workers can no longer have faith that our laws will be respected and their property protected,” Tillis wrote. “While the Administration is busy seeking to authorize China and other countries to steal innovative U.S. technology, much-needed American leadership is lacking when it comes to solving actual problems on the ground in developing countries—like shortages of healthcare workers, lack of availability of syringes, and a lack of the ‘cold chain’ necessary to transport and store doses.”

Need to Refocus

Although not as sexy as waiving intellectual property rights, and unlikely to make U.S. negotiators as popular among the technology-taking countries, a focus on the planning, logistics and last mile issues associated with delivering vaccines would be far more productive than forcing technology transfer and allowing those not competent to manufacture safe and reliable vaccines to compete for the supply chain resources necessary to produce and distribute vaccines around the world. This is particularly true where South Africa has more vaccines than it can use and early evidence suggests that even current vaccines provide protections against the Omicron variant.