Preventing Foreign Attempts to Erode Healthcare Innovation Act would prevent Biden from relinquishing patent protections for US-made COVID vaccines
In the name of ending the pandemic, is the administration’s proposal a step too far?
Context
In 2020, companies including Pfizer, Moderna, and Johnson & Johnson developed effective COVID-19 vaccines in record time. In no small part, that was because of the intellectual property (IP) protections they were granted for their creations.
The average cost of developing a new drug is close to $3 billion. Under U.S. patent law, a patented product can be sold exclusively by the creator or manufacturer for 20 years. The idea is that this allows entrepreneurs and companies to earn back the often enormous costs for research and development, thus incentivizing innovations.
After that, generic drugs and medicines can be sold beginning two decades after the introduction of a brand-name medicine, on the assumption that the original company has earned back its investment by that point (if not before).
While some specifics about patent protection are debated — such as whether that 20-year period is too long, too short, or just right — the general idea of patent protections is almost completely supported across the political spectrum.
However, the pandemic has thrown a wrench and brought a new question to the fore: is the worldwide emergency so severe that it necessitates a one-time suspension of IP protections for the vaccines, to speed up their manufacturing process?
Many Democrats say yes, including President Joe Biden’s administration, which formally endorsed that position in May. Many Republicans — and, unsurprisingly, pharmaceutical industry trade groups and CEOs including the head of Pfizer — disagree. (Although Moderna vowed not to not enforce its patent, voluntarily.)
What the legislation does
The official U.S. position on the matter is determined by the executive branch, not the legislative branch. But the Preventing Foreign Attempts to Erode Healthcare Innovation Act would prevent U.S. taxpayer funds from supporting any World Trade Organization measure to waive vaccine patent and IP protections.
The House version was introduced on May 7 as H.R. 3035, by Rep. Byron Donalds (R-FL19). The Senate version was introduced a week and a half later on May 18 as S. 1683, by Sen. Tim Scott (R-SC).
What supporters say
Supporters argue that the vaccine rollout has already gone faster than expected under the status quo, but that relinquishing the IP and patent protections would voluntarily give away valuable protected science and technology information to anybody who wants it, including to the country in which the pandemic originated and spread in the first place.
Supporters also argue that if companies fear they’ll lose their IP and patent protections, then they wouldn’t even develop a vaccine if a future pandemic ever arises.
“This plan is a direct infringement upon American ingenuity and innovation and hands over our nation’s intellectual prowess for the world’s taking,” Rep. Donalds said in a press release. “This administration has made it a point to put America last, and this is just another glaring example of this sad reality. [The legislation would] prevent the Biden administration from senselessly giving away America’s intellectual property to countries like China.”
“The United States has already pledged more money than any other country toward global vaccine efforts,” Sen. Scott said in a separate press release. “President Biden’s willingness to cave to the World Trade Organization instead of guarding one of our most valuable assets from getting into the hands of bad actors is concerning… Releasing our data ensures that China will benefit off the hard work and innovation of American workers, and will also ensure our next vaccine takes longer to develop.”
What opponents say
Opponents counter that while IP and patent protections should be bolstered in basically every other circumstance, this time truly is different. The pandemic won’t end until it’s eradicated (or at least significantly ameliorated) globally, and at the current rate, many poorer nations aren’t projected to achieve mass vaccination until 2024.
“This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures,” Biden’s U.S. Trade Representative Katherine Tai said in a press release. “The administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.”
“The administration’s aim is to get as many safe and effective vaccines to as many people as fast as possible,” Tai continued. “As our vaccine supply for the American people is secured, the administration will continue to ramp up its efforts — working with the private sector and all possible partners — to expand vaccine manufacturing and distribution,” including potentially waiving IP protections.
Odds of passage
The House version has attracted 22 cosponsors, all Republicans. It awaits a potential vote in the House Ways and Means Committee.
The Senate version has attracted three cosponsors, all Republicans. It awaits a potential vote in the Senate Finance Committee.
Odds of passage are low in the Democratic-controlled Congress.
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This article was written by GovTrack Insider staff writer Jesse Rifkin.
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