May 5, 2021. The U.S. and Germany are party to the Trade Related Aspects of Intellectual Property Rights “TRIPS” agreement among major nations that is intended to align their intellectual property laws in connection with the World Trade Organization. India and South Africa had requested that the governing council for the TRIPS agreement exercise its power to submit an “amendment” to the signatory countries that would waive patent protections for COVID-19 vaccine production and require disclosure of related know-how. In our view, action on this is unlikely because the treaty’s amendment procedure is lengthy and the issues complex. First, the council has to attempt to reach a “consensus” on the matter. Failing that, a two-thirds majority of the council can submit the amendment to countries for acceptance, but if the TRIPS council submits such an amendment, countries are not bound to accept it—they can leave the WTO treaty or stay in if the “Ministerial Conference” allows it in accordance Article X of TRIPS.
Not surprisingly, Germany rejects such an amendment. Consider that the mRNA vaccine IP used by Pfizer was developed in Germany by Bio-N-Tech and then licensed to Pfizer. Germany reportedly stated on May 6 that “the protection of intellectual property is a source of innovation and must remain so” and that “[t]he limiting factors in the production of vaccines are the production capacities and the high-quality standards and not patents.” The U.S. position as suggested by the U.S. Trade Representative statement, puts it in conflict with Germany—the largest economy in the E.U. and 5th largest globally. One fact undermining the U.S. position is that vaccination rates in the U.S. have slowed to a crawl and there is a surplus of vaccine. Therefore, it appears that the faster practical route to vaccinating people in less well-off nations is to simply have the U.S. donate the vaccines that have already been manufactured.
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