Biden Endorses Waiving Covid-19 Vaccine Patent Protections

Benefitting China and harming America.

President Biden has taken his radical agenda to a whole new level by supporting a proposal to suspend the World Trade Organization’s protections for pharmaceutical companies’ coronavirus vaccine intellectual property, including specifically patents. Biden caved to pressure from developing countries and congressional Democrats in endorsing what would amount to one of the most significant expropriations of private property in American history.

“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,” declared Katherine Tai, the United States trade representative, in announcing the Biden administration’s decision.

Fortunately, changes to international intellectual property rules require the unanimous agreement of the World Trade Organization (WTO) member states. So far, there is European opposition to the proposed waiver of intellectual property protections. “The limiting factor for the production of vaccines are manufacturing capacities and high quality standards, not the patents,” said a spokesperson for German Chancellor Angela Merkel. “The protection of intellectual property is a source of innovation, and this has to remain so in the future.”

Whether the Biden administration succeeds in pulling the Europeans and other developed countries its way to reach a unanimous consensus remains to be seen. If the Biden administration is successful and the WTO members approve the final text of an agreement waiving international protection for Covid-19 coronavirus vaccine patents and related intellectual property, the big winner will be China. The Chinese Communist regime has grown accustomed to manipulating the WTO to its own economic advantage, getting away with its bogus claim of “developing country” status. The regime has also tried to weaken the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (known as TRIPS) for years.

The Chinese military conducts bioresearch in collaboration with the Wuhan Institute of Virology, from which the Covid-19 coronavirus may have gotten out. The lab was reportedly studying ways to manipulate bat coronaviruses to make them more infectious to human beings.

The Weekend Australian has just reported on an explosive document “written by People’s Liberation Army scientists and senior Chinese public health officials in 2015,” which the article said was “obtained by the US State Department as it conducted an investigation into the origins of COVID-19.”  The document, reported on publicly for the first time, “describes SARS ­coronaviruses as heralding a ‘new era of genetic weapons’ and says they can be ‘artificially manipulated into an emerging human ­disease virus, then weaponized and unleashed in a way never seen before.’”

Last year, Chinese hackers, along with hackers from Russia and Iran, tried to steal U.S. coronavirus vaccine proprietary research information. But why bother stealing if the Biden administration’s support for the WTO intellectual property waiver proposal pushes the waiver over the finish line? China and other enemies of the United States would be handed the keys to America’s crown jewels of vaccine technology research on a silver platter. The Chinese military and state-run manufacturers will then have the opportunity to further refine the weaponization of coronaviruses by working to neutralize the U.S. vaccines’ defenses against them. And since the U.S. vaccines have proven to be far more effective than China’s homemade vaccines against the Covid-19 coronavirus, Chinese manufacturers will have no hesitation producing knockoffs of the U.S. vaccines and competing unfairly with American manufacturers.  

Not surprisingly, Socialist-Democrat Bernie Sanders congratulated the Biden administration for “putting people over profits” in deciding to back the intellectual property waiver proposal. Socialists can never get it through their thick heads that people and profits are not mutually exclusive. Incentivized by the promise of a return on their investments, the American pharmaceutical companies have delivered what many people thought was impossible in such a short period of time. Millions of people are being vaccinated at no cost to them. More people are alive and healthier today as a result.

Many pharmaceutical company expenditures result in dry holes. Pfizer, Moderna and Johnson & Johnson have surely made past investments in R&D on a host of potential drugs that did not pan out successfully. There is no rational reason in a capitalist society for these companies to risk billions of dollars of their own money and the resources that it takes to develop safe and effective vaccines unless they can be confident that they will reap the rewards of successful innovations. Such innovations are supposed to be protected by patents if they meet the criteria for patent issuance.

Now the Biden administration wants to change the rules of the game for Covid-19 coronavirus vaccine patent and related intellectual property protections after the pharmaceutical companies made their investments in good faith. They won’t be as willing to take such chances in the future.

A patent is a proprietary intellectual property right specifically recognized as such in Article I, Section 8, clause 8 of the U.S. Constitution. This clause grants Congress the authority to secure for inventors for a limited time the “exclusive Right” to their “Discoveries.” Congress has exercised this authority with its passage of the Patent Act.  

The Constitution’s Fifth Amendment states that no “private property be taken for public use, without just compensation.” Patents issued by the U.S. government for a qualifying invention are considered by the Supreme Court to be the patentee’s exclusive property, which cannot be appropriated or used by someone else without just compensation. The Biden administration would be violating the Constitution’s patent and private property protections if it forced pharmaceutical companies to waive their patent rights without “just compensation.”

Hold on, say the proponents of the intellectual property giveaway. They argue that American taxpayers’ money helped to fund the research, development and production of the Covid-19 coronavirus vaccines. Since there would have been no vaccines without such public funding in the first place, the argument goes, these vaccines should be considered part of the public domain. The social justice activists want even more from the pharmaceutical companies. The activists are pressing to require the patent owners to transfer their underlying know-how and technical information and to supply personnel to developing countries. Presumably, the pharmaceutical companies are supposed to share all this for free or at a nominal charge. That’s the way socialism works.

The federal government does have certain rights in technology developed with federal funding in order to “meet the needs of the Government and protect the public against nonuse or unreasonable use of inventions” (Bayh-Dole Act). The federal government can in some circumstances require the owner of patented technology funded with public money to grant a “nonexclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants,” including where “necessary to alleviate health or safety needs.” But this does not give the Biden administration carte blanche to do whatever it likes.

Pfizer risked only its own money on the R&D that led to the successful development and production of its Covid-19 coronavirus vaccine. Pfizer did not take federal money for its vaccine research or development. Thus, in Pfizer’s case at least, the Biden administration should have no say at all in how Pfizer determines to use its coronavirus vaccine patents so long as it does not violate other patent owners’ rights or the antitrust laws.

Even those companies that did accept federal research and development funding for their Covid-19 coronavirus vaccines, such as Moderna and Johnson & Johnson, should not be required to waive their patent rights worldwide. Such a waiver would allow foreign companies, even those without rigorous quality controls, to freely develop their own knockoffs. The global market would then be flooded with inferior, potentially unsafe vaccines. That is why the Bayh-Dole Act itself contains a section entitled “Preference for United States industry.”

Granting waivers for pharmaceutical company Covid-19 coronavirus vaccine patents will not only hurt the patent owners’ businesses. By mandating such waivers and directing federal government agencies to waive the Covid-19 coronavirus patents they own themselves and to divulge underlying know-how globally, the Biden administration will endanger U.S. national security and hurt the U.S. economy.

The coronavirus originated in China. Its Communist regime has already proven its malevolent intent when it lied about the virus’s origins and human transmissibility before the virus had a chance to spread to other countries.

China is still covering up information on where the virus originated. The World Health Organization’s investigatory team, which visited China earlier this year to look into the Covid-19 coronavirus’s origins, was stonewalled by Chinese authorities. To please their Chinese government hosts, the World Health Organization’s investigatory team ended up producing a highly sanitized report dismissing the plausibility of the virus’s origin in a lab. The report was a complete whitewash of what could well have happened.

As discussed earlier, the Chinese military conducts bioresearch in collaboration with the Wuhan Institute of Virology. The Chinese military has reportedly discussed the weaponization of coronaviruses through artificially manipulating their genetic makeup. It's not a stretch to surmise that the Covid-19 coronavirus emerged from the lab. Giving the Chinese regime access to U.S. patented vaccine technology will enable the Chinese military, working with the Wuhan laboratory, to figure out how to end-run vaccine defenses with more potent coronavirus genetic variations.

The health needs of developing countries can be met with measures far short of setting the very troublesome precedent that vaccine patents and related intellectual property should be considered public property.

Dr. Luciana Borio, an infectious disease specialist who was the director for medical and biodefense preparedness policy at the National Security Council during the Trump administration and served in the Food and Drug Administration during the Obama administration, tweeted a few suggestions:

“How about 1. donate our excess supply of exceptional vaccines, 2. expand U.S. based vaccine manufacturing and, in parallel, support fill & finish global network, 3. ⬆️support for the many U.S.-led vaccine efforts underway globally (#Codagenix, @PeterHotez vaccine candidate, etc.)

President Biden could help poor countries around the world get the vaccines they need without undermining America’s national security and economy in the process. Instead, Biden once again is bowing to the leftwing progressives’ demands with his embrace of the vaccine intellectual property waiver proposal.

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