Canada Among Countries Raising Concerns Over US Move to Waive COVID-19 Patents

Patents lawyer sees no sound justification for Biden administration’s decision
May 12, 2021 Updated: May 12, 2021

The U.S. government’s decision to waive patent protections for COVID-19 vaccines is “self harm,” says an intellectual property (IP) lawyer. Canada is among those countries that have not announced support for the move, saying IP safeguards are not what’s preventing vaccine access.

The U.S. commitment is inexplicable from any sound perspective, whether it be charitable, self-interested, or foreign policy, says Richard Owens, who has specialized in business and commercial law, IP strategy, and patent and technology laws.

“This is a situation where Canada actually has the option to do not only the right thing, but the most self-interested thing,” Owens told The Epoch Times. 

“And the right thing is to completely reject what the U.S. has done—completely reject the waiver, and just stand up for an industry that it has beaten up on for so long,” added Owens, an adjunct professor of law at the University of Toronto.

U.S. trade representative Katherine Tai announced on May 5 that “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.” 

This move was supported by the World Health Organization.

The Value of IP Protection

It’s been said that IP is the currency of today’s knowledge economy. Thus it’s wealth, and the U.S. proposal amounts to wealth redistribution, which is an aspect of socialism.

“I think that for any government to wantonly throw away other people’s property is a pretty shameful thing to do,” Owens said.

And waiving patent protections is no guarantee that vaccines will be manufactured in sufficient quantities with sufficient quality, and be not-for-profit, he said, noting that the health economy could end up with a proliferation of poor-quality and even counterfeit products.

“So what you’ve got is a gesture which is going to be completely ineffectual. It’s going to benefit the thieves and corrupt players of the world, like China who caused the pandemic,” he added.

Moreover, IP protections incentivize companies to take risks, knowing they can get rewarded. Owens said the U.S. decision sets a “catastrophic precedent.” The pharmaceutical companies that have invested billions and years of research and development may no longer be able to reap the rewards for their efforts.

“What does that have to do with the incentives to invest in life-saving treatments and other inventions around the world?” Owens said.

Critical Infrastructure

Canada’s COVID-19 response has been poor compared to other countries of similar economic status and standard of living. No COVID-19 vaccine production is currently taking place in Canada. 

Weaker patent protections “weaken the environment for biopharmaceutical innovators seeking to invest in R&D and undermine access to the newest innovative medicines in Canada,” according to the U.S. Chamber of Commerce’s Global Innovation Policy Center, which publishes an annual report mapping the IP ecosystems in 53 global economies.

BioNTech, the small German company that partnered with U.S. giant Pfizer to produce the first U.S.-approved coronavirus vaccine last year, is making investors take a hard look at the German biotech scene. In 2020, German biotech companies raised triple the amount of funding they did in 2019—equivalent to US$3.7 billion, according to the Wall Street Journal citing an Ernst & Young analysis.

The pharmaceuticals and biotech spaces have not only been cited as strategic industries, but they also form part of a nation’s critical infrastructure.

Varying Views

A coalition of MPs from all parties in Canada—including Conservative Opposition leader Erin O’Toole—supports a temporary waiving of COVID vaccine patent protections.

We need to work with the Americans on ways, even including suspending IP, to help the world fight COVID together. We have to do that,” he said.

Prime Minister Justin Trudeau said his government is not “blocking” the U.S. move but is working to find a solution. 

The federal minister responsible says the barriers to vaccine access are unrelated to IP but have to do with supply chain bottlenecks.

Mary Ng, minister of small business, export promotion, and international trade, said Canada would take part in negotiations at the World Trade Organization (WTO) concerning the IP waiver proposal. 

“Our government firmly believes in the importance of protecting IP, and recognizes the integral role that industry has played in innovating to develop and deliver life-saving COVID-19 vaccines,” she said in a May 7 statement. 

Germany’s Angela Merkel is opposed to the waiver proposal, saying it will negatively affect vaccine quality. And the European Union says that the United States should focus on lifting vaccine export restrictions and that waiving patent protections is not the first step to widening vaccine rollout.

At the WTO, South Africa and India have since last October been the main proponents calling for the IP waiver to avoid barriers to timely access to medicines and the scaling up of their manufacturing.

Follow Rahul on Twitter: @RV_ETBiz