HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, November 18, 2022

The Debate on Protecting Intellectual Property Rights for COVID-19 Vaccines & Therapeutics

Brian Zupruk (Independent), The Debate on Protecting Intellectual Property Rights for COVID-19 Vaccines & Therapeutics (2022):

COVID-19 is proving a durable obstacle to global public health and to the world’s economies. And while the battle against COVID has largely been waged in laboratories and clean rooms of pharmaceutical giants seated in the world’s largest economies, the populations most in need do not have anywhere near proportional access to the fruits of those laboratory victories. The cutting-edge vaccines and therapeutics that are permanently changing the public health landscape are carefully guarded intellectual property in which major states, multilateral organizations, and the global pharmaceutical industry all have interest and stakes.

Since Fall 2020, an outspoken movement has emerged that seeks a waiver of international intellectual property rights for COVID-19 vaccines and therapeutics through the World Trade Organization’s TRIPS Council, the governing body for transnational IP issues. Because TRIPS typically operates through unanimity, the waiver movement—launched by India and South Africa but now championed by the United States—faces a substantial hurdle: strenuous opposition from trade groups and some E.U. member states (most critically Germany.)

This Note examines the IP landscape for COVID-19 intellectual property vis-à-vis the TRIPS Agreement; surveys the major policy and legal arguments on both sides of the TRIPS waiver debate; and looks at major precedent for one non-TRIPS solution to the IP waiver debate: public-private partnerships. The Note concludes that while it is possible to reach a workable solution through TRIPS, the WTO process has proven a poor fit for pandemic crises because of the baked-in consensus requirement and the generally ponderous pace of diplomacy. Instead, the Note posits that in the short-term, events on the ground may have overtaken the diplomatic process; and long-term, the goal should not be free-flowing pharmaceutical IP but investment in distributed vaccine production capacity and new supply chain development across the Global South.

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