Top Republican Raises Prospect of Congress Blocking COVID Vaccine Patent Waivers

Republicans fumed at President Joe Biden’s top trade negotiator on Wednesday for proposing waivers for patent protections on COVID-19 vaccines — a move that would make it easier for poorer countries to inoculate their citizens and stem the tide of the global pandemic.

One conservative lawmaker after the next lambasted U.S. Trade Representative Katherine Tai during a hearing held by the Senate Finance Committee. The top Republican on the panel, Sen. Mike Crapo of Idaho, claimed that Congress has the authority to stop Tai from seeking patent protection waivers before the World Trade Organization (WTO), an assertion that Tai refuted.

“I believe I have the authority to negotiate at the WTO,” Tai told Crapo, countering a claim that the senator made about laws on congressional oversight of U.S. trade negotiations before the 164-member body. “The provision you cited earlier really has more to do with withdrawing the United States from the WTO, as opposed to the authority of the United States to participate at the WTO as a full member,” she added.

“I don’t agree with that,” Crapo replied. He then asked Tai to push for a vaccine patent waiver that excludes China and Russia — an impossible and pointless task, since China and Russia belong to the WTO, which is governed by consensus, and each country also already produces its own vaccine. Tai responded by pointing out the waiver’s “main proponents are India and South Africa, and that the vaccine inequity is most striking on the African continent.”

Tai noted later during the hearing that India desperately needs relief right now. The country has endured more than 300,000 new COVID-19 cases every day for the past three weeks. On the day that the hearing was held, the seven-day average number of COVID deaths in India was 4,021, according to data compiled by Johns Hopkins University.

India and South Africa have been calling for the WTO to enact waivers on patent protections (so-called Trade-Related Aspects of Intellectual Property Rights, or TRIPS waivers) since last October. The proposal has been supported by most of the world’s poor countries. It has been opposed by mostly wealthy countries, including Great Britain, the European Union, Norway, Switzerland, Japan, Canada and Australia.

The U.S. government opposed TRIPS waivers for COVID-19 vaccines until May 5, when Tai released a statement saying that the Biden administration “supports the waiver of those protections for COVID-19 vaccines” and said that the U.S. “will actively participate in text-based negotiations at the WTO needed to make that happen.”

Nearly every Republican member of the Senate Finance Committee blasted Tai for taking this position, claiming that patent waivers will hinder investment in new medical research — a dubious charge since public-sector entities around the world invested $106 billion in COVID-19 vaccines in the first 11 months of last year alone. Technology at the heart of the Pfizer and Moderna vaccines, so-called mRNA, was also developed entirely with research funded by the U.S. government, as Scientific American noted last November.

At one point during Wednesday’s hearing, Republican of Pennsylvania Sen. Pat Toomey, criticized the push for a TRIPS waiver by quoting Pfizer CEO Albert Bourla complaining about increased competition for “the raw materials we require to scale our production.” The only obvious negative impact of this would be higher costs for Pfizer and a dent into the company’s profit margins, if true. Toomey also said a patent waiver “undermines our ability to deal with the next crisis,” echoing an assertion made on May 6 by a corporate trade association called the Biotechnology Innovation Organization (BIO).

“In the future, this decision will act as a disincentive to companies to respond to the next pandemic,” said Jeremy Levin, CEO of BIO—as if it were market signals and not massive public sector expenditures that led to the financing of vaccine research and development.

Other Republicans to join Toomey and Crapo in bashing the push for a TRIPS waiver at the hearing were Senators Chuck Grassley of Iowa, John Cornyn of Texas, James Lankford of Oklahoma, Bill Cassidy of Louisiana, John Barrasso of Wyoming, John Thune of South Dakota, and Steve Daines of Montana.

Barrasso asked Tai why she is pushing to exempt COVID-19 vaccines from patent protections after having testified in support of strong intellectual property (IP) protections at her confirmation hearing. She denied changing her policy positions, saying, “Saving lives is absolutely important.”

“As long as there are partners at the WTO who feel so strongly that intellectual property protections are getting in the way of their ability to access vaccines and to save their populations, that is absolutely worth engaging with,” she said.

Earlier in the hearing, Tai defended the push for a waiver by citing the decision by the WTO two decades ago to invoke TRIPS waivers to combat the spread of HIV/AIDS in low-income countries. As Reuters noted in March, the ability of poorer countries to sidestep patent protections “drastically cut AIDS drug costs and boosted access.”

Though much of the criticism came from Republicans, New Jersey Democratic Sen. Bob Menendez also expressed skepticism of the decision, lamenting the fact that Congress was not “closely consulted on this announcement.” Meanwhile, his Democratic colleague, Massachusetts Sen. Elizabeth Warren, urged the Biden administration to seek more waivers.

“I’m concerned that your announcement last week committed to only negotiating a waiver on IP rights for vaccines,” Warren said, pushing for patent waivers on “COVID-19-related diagnostics, therapeutics, and [personal protective equipment].” Advocates of invoking the TRIPS waiver on vaccines have acknowledged that the exemption alone is not sufficient to fight the spread of COVID-19, though it is an important first step. Tai responded by saying that the Biden administration is only focusing on vaccines at the moment.

Despite the historic move by Tai to push for TRIPS waivers on vaccines, there appears to be a major roadblock in the form of opposition from Germany. A single member can block any WTO proposal because the body operates by consensus.

“If we are going to succeed at the WTO, in making the WTO relevant here in responding to the needs of our people worldwide and our economies, it will necessarily be something that has to be supported by all 164 members of the WTO,” Tai said. “We see our role as critical to facilitating that conversation and process.”