To Waive or Not to Waive?

Waiving the patents protecting COVID-19 vaccines and therapeutics could help end the pandemic, says Penn State Law Professor Eileen Kane.


“The Biden administration’s willingness to support part of India and South Africa’s proposal in the World Trade Organization to allow countries to temporarily waive the intellectual property protections on pandemic-related inventions is an unprecedented break from tradition. The last time the U.S. entered the discussion on patents and pharmaceuticals was in 2001 during the anthrax scare, when fears that there wouldn’t be enough of Bayer’s antibiotic, Cipro, led to consideration of issuing a compulsory license to Bayer’s patent so domestic companies could quickly produce large amounts of the drug. Otherwise, the U.S. has generally argued that interference with patent rights will disincentivize pharmaceutical innovation.

“A temporary waiver of the intellectual property protections on COVID-19-related products would remove some procedural barriers at a time when things need to move quickly—particularly on the vaccine front, where the need is most acute. I think the patent waiver is a reasonable proposal, and it’s an important move for the international community because it takes forward the argument that’s been going on since the height of the HIV/AIDS crisis, which is that patent rights can get in the way of achieving public health outcomes—particularly during a pandemic—and that intellectual property rights must be balanced with public health.

“Still, the waiver isn’t a magic bullet. It might take until later this year for member countries to reach a consensus and for the proposal to work its way through the WTO. And patent rights pertain to only a part of the knowledge needed to manufacture these vaccines. They don’t account for the materials, the facilities, the personnel. The manufacturing process is complex, and many countries don’t have what’s needed.” —SI