Thread by @GaryWinslett

The US and EU should allow the WTO to grant a modified TRIPS waiver for COVID-vaccines. That would be good for developing countries, the WTO, the Biden Admin, even for pharma companies. Here's why. A thread on trade, intellectual property, and vaccines. 1/

This isn’t coming from a pharma or WTO opponent. I like the WTO and I like @PhRMA. I also like and respect access to medicine advocates like @jamie_love. There doesn’t have to be a zero-sum relationship between them over COVID vaccines. 2/

The WTO, created in the 90s, came with TRIPS, a set of rules which aimed to help IP-intensive firms enforce their IP rights. This was one of the Global North’s core asks. In exchange, the Global South got liberalization in agriculture and textiles. 3/

The TRIPs agreement made all states enforce patents on drugs but made certain exceptions for dealing with public health emergencies. In such an emergency, a state could issue a compulsory license (CL) which amount to a patent revocation. 4/

TRIPS helped pharma but was perceived to contribute to high drug costs especially for the Global South and thus to be a hindrance in the fight against the AIDS epidemic. That led to the Doha Declaration in 2001 which strengthened states’ ability to issue CLs. 5/

The Doha Dec. Para 5c clarified TRIPS Art. 30 and 31 and, importantly, said states could define for themselves what constituted a national emergency justifying a CL. Para 5c specifically includes epidemics. For good explainers on Art. 30 and 31 and COVID, see @Dyebo’s blog. 6/

This was obviously a very condensed and simplified history here. For more good sources on this, see @loyaladvisor's thread here. Also, read everything you can by or about Jamie Love. The guy is a god among access to medicine activists. 7/

https://twitter.com/loyaladvisor/status/1362357163704868865

The other day, when I said that USTR needs a more diverse set of cleared advisers, he was one of the people I had in mind. USTR should be listening to pharma reps *and* @jamie_love. Make Love a cleared adviser now please! 8/

Fast forward to COVID. It’s obviously an epidemic. Vaccines are coming on-line. If a developing country wants to issue a CL for one of these vaccines, that’s pretty clearly within the rules laid down by TRIPS and the Doha Dec. 9/

Developing countries, led by India and South Africa, are asking for a more explicit waiver from TRIPs rules for the duration of the COVID pandemic. They argue that even if a CL would be inside TRIPs rules, other TRIPs rules are still in the way. 10/ docs.wto.org/dol2fe/Pages/S…

For an excellent introduction to the politics around the waiver request, see @CoppetainPU
blog post here 11/ tradebetablog.wordpress.com/2020/12/17/wto…

So far, civil society proponents of the waiver have provided some anecdotes of IP rules that are in the way of fighting COVID but those are nothing systemic and concrete. ielp.worldtradelaw.net/2020/10/who-wi… 12/

Meanwhile, opponents of this waiver argue, I think persuasively, that it isn’t really necessary. Developing countries can already issue a CL for a COVID. Furthermore, IP doesn’t seem to be a major barrier to vaccine access. 13/
cato.org/free-trade-bul…

The very limited know-how to make these new vaccines seem the much bigger hurdles. See @ChadBown @SoumayaKeynes Latest Trade Talks episode for great explanations of those.
tradetalkspodcast.com/podcast/150-is… 14/

The Pfizer and Moderna vaccines are mRNA and the manufacturing process appears to be very sensitive and challenging. Distribution for those is also challenging. The EU’s export ban on vaccines is clearly unhelpful too. There are a lot of hurdles totally unrelated to IP. 15/

@mercuriobryan has great new paper outlining the ways in which existing mechanisms are enough to balance IP with public health. If you're really jazzed up in favor or the waiver, take a minute to read his paper and cool your jets. 16/

papers.ssrn.com/sol3/papers.cf…

@snlester asked @WallachLori about CLs a week or two ago and she said that the fear is that without a waiver, states are vulnerable to challenges of CLs in their domestic courts. I don’t think pharma firms would be politically stupid enough to do that. 17/

Even apart from CLs, states can use what you might call “Indian Injunctions.” There’s a way to use injunctions to mimic a CL (which India has done before) that is TRIPS-compliant and based in part on a U.S. Supreme Court ruling (eBay v. MercExchange). 18/

Given all of this, opponents of the waiver see the waiver request as political posturing. To them, this is just states who don’t like TRIPs throwing rocks at TRIPs because they can. They worry that granting this waiver will unravel the whole IP system. 19/

I get that but I still think a waiver makes some sense. First, I think the people saying TRIPS is hurtful here are probably wrong but if there is even a 5% chance that TRIPS impedes global COVID recovery, that’s a disaster that must be avoided. @DrTedros @PeterASinger 20/

Second, because developing countries could just use a CL and because the major thing limiting supply isn’t IP, and because there will be a number of vaccines coming on-line soon, the waiver is mostly symbolic anyway. 21/

Some very smart people like are worried that granting the waiver will meaningfully undermine the broader IP system for non-COVID products. I don’t see why that has to be the case, but I do take that concern seriously. 22/

Moreover, if the US/EU are willing to unblock the waiver in exchange for some kind of language in it very clearly limiting the scope so as to assuage the concerns of drug firms and IP proponents, that seems to me to be the sweet spot for compromise on this. 23/

I’ve written an amended compromise text that I think the trade world and USTR should consider. Instead of a blanket waiver on TRIPS ch. 1, 4, 5, and 7, I’ve substituted in a two-year moratorium on enforcing of COVID-related patents. SA Waiver proposal on left, mine on right. 24/

TRIPS chapters 1, 4, and 7 are on copyright, industrial design, and undisclosed information. There is little to no evidence that these have or even could impede the COVID response. COVID-related patents could be CL’ed anyway. 25/

What the Global South really wants out of this is a political commitment from the Global North not to constrain their policy space to deal with COVID. This gives them that political commitment and does it in a way the Global North may be ok with. @ambFaizelIsmail
26/

There is precedent for this kind of thing. Two-year moratoriums have been used for developing countries without domestic manufacturing capacity to be able to issue CLs and also for nonviolation complaints under TRIPs. 27/

The new WTO Director General @NOIweala has called for ‘a third way’ compromise between the Global North and the Global South. This amended waiver/moratorium could be that third way. At minimum, it is something that @USTR should consider. 28/

To me, the bigger risk to the IP system than this moratorium comes from the potential perception that TRIPS is in the way of responding to COVID, even if that’s an unfair or inaccurate perception. This moratorium will be good for the @WTO ’s perceived legitimacy. 29/

The global trading system is under assault from populist nationalists. The Doha round collapsed. The DSU needs to be stood back up again. The last thing the trading system needs is another body blow, especially if such a blow is avoidable and dodging it is cheap. 30/

More centrally, the WTO exists to marry the efficiency and wealth creation of capitalism with the idealist ambition and internationalist instincts of liberalism. It exists to simultaneously promote trade and allow states to pursue important noneconomic goals. 31/

Granting this moratorium, which probably won’t undercut pharma profits anyway and doesn’t do much a CL wouldn’t, is consistent with that mission. It could even make the WTO more popular, which would be fabulous and sorely needed! 32/

Granting the waiver would also be good for the Biden Admin. It would show that under its leadership the U.S. is fully turning away from Trump’s hostility to multilateralism and its non-stop chauvinist truculence towards other countries. 33/

Finally, granting the waiver may actually be good for pharmaceutical companies. Those firms have arguably never recovered from the PR beating they took around the AIDS epidemic and their disastrous decision to sue South Africa. This could change that. 34/

If there is anything a firm should be able to get rich doing right now, it’s making a COVID vaccine. The benefit to humanity of doing that work is truly incalculable. This is pharma’s moment to become heroes. They should support this waiver too. @pfizer @JNJCares 35/

@moderna_tx has already said it won’t try to enforce the patent on its COVID vaccine. @AstraZeneca pledged to make no profit from their vaccine. Awesome! Supporting this waiver is consistent with that approach and could yield large long-term PR benefits for pharma. 36/

If you think this proposal is worth at least considering, please help me out and retweet this/send it around. I don’t have much of a Twitter following but I think this could do some real good in the world. @janschakowsky @repblumenauer @BrianDeeseNEC 37/

Commerce and compassion are not enemies, or at least they don’t have to be. We can have an international IP system that incentivizes innovation in medicine while also being thoughtful about creating flexibilities in that system for emergencies like COVID. End/

Two new article out this morning on this thread's topic. The first by @alanbeattie ft.com/content/020c5a…

The second by @bbaschuk bloomberg.com/news/newslette…