Robert Grant
Former Executive Director, International IP, Global Innovation Policy Center, U.S. Chamber of Commerce


December 09, 2021


Key takeaways

  • Some governments, including the United States, are considering a proposal to waive intellectual property laws for COVID-19 vaccines.
  • But waiving intellectual property laws could jeopardize medical innovation, including the development of new or adapted vaccines to combat COVID-19 variants like Omicron.
  • Waiving intellectual property rights for COVID vaccines could have ripple effects on innovators and investments across industries.

The new Omicron variant has laid clear the need for a better global approach on the distribution of COVID-19 vaccinations. Right now, nearly half of the world’s population is fully vaccinated. Manufacturers are on track to produce a global surplus of vaccine supplies in 2022, yet  despite almost 40 million vaccinations now being administered daily, only 6.3% of people in the lowest-income countries have received a jab. There’s no debate that we must bridge this divide. But there is debate as to how we do it, and regrettably much of that debate is centered on intellectual property rights.

Some governments, including the United States, are talking up a proposal at the World Trade Organization to waive intellectual property (IP) laws — such as patents and trade secrets — for COVID-19 vaccines, suggesting this would help boost manufacturing and vaccination rates. But this would lead to significant, unintended consequences and is actually more likely to hurt not help pandemic response. Here’s what that policy would actually mean for global public health efforts, now and in the future.

IP enables the investment and discovery of new cures, and waiving it would jeopardize innovation, including new/adapted vaccines to combat COVID-19 variants like Omicron.

The available COVID-19 vaccines are the product of decades of investment in research and development — investment that wouldn’t have been viable without strong IP protections. Strong IP protections provide investors with a chance to make a return on their risky and expensive endeavors, which often fail. In the event that new medical technologies succeed, strong IP laws mean investors’ end product can’t be stolen or misappropriated, at least for a short period of time.

If governments begin nullifying IP laws, it will become increasingly difficult for businesses to invest in new technologies, like a new drug compound or vaccine. After all, 75% of U.S. investment in R&D comes from the private sector.  It typically costs a company $2.6 billion to bring a single new medicine from bench to bedside. If those new medicines or vaccines don’t have value in the marketplace — because no one owns the rights to them — they’ll be left sitting in the lab. We need industry to pivot to finding solutions to new variants like Omicron and future challenges, and so maintaining transparent and predictable IP laws is a must.

Protecting IP makes the collaboration and partnership needed to scale up vaccine production possible.

The assumption that IP is a barrier to information-sharing is wrong. In fact, an effective IP system encourages companies to trust one another and work together. That’s because IP protection provides the legal foundation to turn competitive companies into collaborators. To date, companies have forged more than 300 contractual manufacturing partnerships to scale up production and distribution of critical COVID-19 technologies, including vaccines. If governments start tampering with IP laws, this injects uncertainty and actually risks unwinding these existing manufacturing partnerships.

For example, Pfizer and BioNTech partnered with Brazil’s Eurofarma to manufacture doses of their COVID-19 vaccine for Latin America. AstraZeneca partnered with Siam Bioscience in Thailand and Serum Institute of India to manufacture doses of their COVID-19 vaccine, too. Thanks to agreements like these, vaccine manufacturers expect to produce 12.5 billion doses by the end of 2021 and an additional 17 billion doses by July 2022.

IP laws will help us prepare and respond to future pandemics.

Without IP-enabled investment in innovation and IP-enabled collaboration to catalyze that innovation, our ability to combat the next pandemic would be severely limited. A pandemic is a whole-of-society challenge that requires a whole-of-society response. From the very first days of the COVID-19 pandemic, governments, private sector entities, and universities began forging partnerships to pool the skills and resources needed to deliver emergency relief, including vaccines.

Those partnerships are built on the foundation of honesty, fairness, and trust inherent in our IP system. An IP waiver would harm our IP system, and in effect, break that foundation, leaving stakeholders reluctant to team up in the future. Not to mention, innovators outside of the healthcare sector could view the IP waiver as a precursor to other government policies that disrespects law and property, further undermining private sector investments across multiple innovative and high tech sectors relating to health, security.

IP waiver discussions distract from the real solutions needed to improve global vaccinations

There are very real problems leaders should be focused on, like removing trade barriers, easing supply chain bottlenecks, and supporting delivery assistance around the world. They should be exploring ways to address healthcare worker training and personnel shortages, gaps in the “cold chain” necessary to transport and store doses, and vaccine hesitancy.

Recent headlines provide the proof. South Africa recently asked both Johnson & Johnson and Pfizer to delay delivery of additional COVID-19 vaccines due to surplus supplies, reportedly the result of an inability to get shots in arms and vaccine hesitancy among their population. Namibia reported plans to destroy hundreds of thousands of expired vaccines due to slow uptake. And India is anticipating using only half of the vaccines they’re producing in December, with healthcare workers struggling to persuade millions of people to return for a second dose. India in particular, but also other countries with superfluous supplies, should be allowing and facilitating more exports including by fulfilling supply contracts to COVAX, the international vaccine program for the poorest countries.

As U.S. Chamber President and CEO Suzanne Clark said at a recent event, “COVID-19 will not be defeated anywhere until it is defeated everywhere.” It’s time for global leaders to rally around meaningful public health policy, not misguided policies like waiving intellectual property. The IP waiver won’t help us end the COVID-19 pandemic. It will exacerbate our challenges even further, and undermine the extraordinary progress that has been made to bring the COVID-19 pandemic to an end.

About the authors

Robert Grant