Patently-O Bits and Bytes by Juvan Bonni

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2 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 1

    This comment does not really relate to anything listed above, but I have been thinking about the motion in front of the WTO by India, South Africa, & Kenya to suspend TRIPS enforcement for technologies related to the COVID-19 pandemic. The more I think about this, the more I think that PhARMA and BIO—by opposing the motion—are missing a golden opportunity.

    It is commonplace to assert that this motion constitutes some sort of grad at a forced tech transfer from the higher-tech pharma companies to some of the world’s poorer nations. If you read the wording of the motion (link above) however, this reading is not accurate.

    The petitioners are merely asking permission to waive IP inside their own borders, not inside the US borders. They are not asking the US to waive US-granted IP rights. Indeed, it would be futile for them to make a request of the WTO to waive US IP rights, as the petitioners all know that the WTO has no power to make such a waiver. If the petitioners wanted US IP rights to be waived (a request that they are not making)—or for companies to be forced to effect a tech transfer—they would need to petition the US Congress or the various EP legislatures, not the WTO, because only the governments of the countries in which these pharma companies are headquartered have the power to grant waivers of their own IP.

    Really, in other words, India and South Africa are asking for essentially nothing. Their petition is hollow gesture. No actual IP would be suspended if the WTO were to grant this TRIPS waiver, because none of the relevant IP was ever nationalized in IN, ZA, etc.

    PhARMA & BIO should be blowing loud horns about how much they support this motion. It would be good PR, but it would come at essentially no cost. They would not be giving up anything of actual value, in return for which they would burnish their own reputations as responsible stakeholders in the global health system.

    I expect that the reason why PhARMA and BIO nevertheless oppose the motion is that they do not want to set a precedent for TRIPS waivers. That, however, is where they are really missing the golden opportunity. Right now, TRIPS waivers have never been granted, so no one knows what sort of occasion is the proper impetus for a TRIPS waiver. By granting the TRIPS waiver, the WTO would be setting a precedent that says essentially “totally out of control global scale pandemic” is the threshold for TRIPS waiver. PhARMA & BIO should want this to be seen as the threshold.

    The COVID19 pandemic really is a legitimate reason to grant a TRIPS waiver. Let us make clear that this is the scale of emergency that should trigger such a waiver.

    1. 1.1

      Perhaps you are correct in the hollowness of the gesture.

      But as noted across several blogs, any such hollowness that you may want to point to is met in force with the hollowness of the rejection of the gesture.

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