Documents Reveal Biden Admin Not Fighting for a Covid Vaccine Patent Waiver, Despite Public Statements

On November 26, as news of the new Omicron variant of Covid-19 stoked alarm around the world, the White House released a statement calling on countries to support an intellectual property waiver for Covid-19 vaccines. 

“I call on the nations gathering next week for the World Trade Organization ministerial meeting to meet the U.S. challenge to waive intellectual property protections for Covid vaccines, so these vaccines can be manufactured globally,” said President Joe Biden. ​“I endorsed this position in April; this news today reiterates the importance of moving on this quickly.”

However, this public statement, which garnered numerous headlines, stands in stark contrast with what the Biden administration did — or did not do — behind closed doors at the WTO on November 29.

At an informal meeting of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council, the body that determines global intellectual property rules, the United States declined to take robust action to approve an intellectual property waiver, and merely referred back to the remarks that President Biden made on November 26. While the Biden administration has publicly declared support for an intellectual property waiver of some kind, it has not specified whether it supports the specific proposal put forward by South Africa and India in October 2020, nor clarified what changes it would like to see. The effect, global health activists charge, has been a slowing down of negotiations, in a context where any delay means more lives lost. Instead, these activists say the United States could be using its power at the WTO to pressure its allies to stop blocking discussions, and call a General Council meeting to pass a waiver. 

Global health activists say the Biden administration’s inaction on November 29 shows there is a gap between what the White House is saying on the political level, and what it’s actually doing on the ground.

The developments were revealed in a summary of the November 29 meeting by Geneva-based trade diplomats that was obtained by In These Times. (The meeting was closed to journalists.) According to the document, the U.S. role in the meeting can be summarized as follows:

The United States referred to the recent statement by President Biden in support of a waiver of intellectual property protections for Covid-19 vaccines, given the urgency of the pandemic and the recent development of a new variant. Therefore, the U.S. said it will continue to engage with members to look for areas of convergence that can lead to a solution.

Global health advocates say that the Biden administration merely referring back to its previous statement is insufficient for passing an intellectual property waiver with the urgency it demands. ​“The U.S. has not said much,” according to Sangeeta Shashikant of the Third World Network, a global research and advocacy organization based in Geneva. ​“What appears to me is at the political level they’re saying one thing, but the technical team sees their role as facilitating discussions. There seems to be a disconnect between what the Biden administration may be saying and what may be playing out in reality.” (“Technical team” refers to the delegates who represent the U.S. Trade Representative at the WTO.) 

In October 2020, India and South Africa put forward a proposal to suspend key intellectual property rules at the WTO, so that Global South countries could access cheaper, generic versions of Covid-19 vaccines and treatments. The measure is called a TRIPS waiver, a reference to the WTO TRIPS agreement, which sets international rules around patents. Since it was introduced, the proposal has garnered support from more than 100 countries, as well as major human rights organizations.

In May of this year, U.S. Trade Representative Katherine Tai said the Biden administration ​“believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for Covid-19 vaccines.” However, the administration did not specify whether it supported the India-South Africa proposal as-is, and reporting from In These Times in September revealed that the administration declined to throw its weight behind that proposal at a previous meeting of the WTO TRIPS Council.

Advocates say they’re frustrated with the Biden administration’s lack of meaningful action since the May announcement — and that the developments from Monday’s TRIPS Council meeting are consistent with that pattern.

“If the U.S. is supporting the text as presented, it should say, ​‘We are supporting it as presented.’ Or if they would like to see changes, they should say, ​‘Okay, we would like to propose these changes.’ Unless they do that, there isn’t full clarity on the U.S. position. The U.S. should engage in the text-based negotiations,” says Shashikant.

Burcu Kilic, the research director of Public Citizen’s Global Access to Medicines program, a watchdog effort, shares Shashikant’s frustration. ​“What is the U.S. position? Do they support the waiver as-is, or do they oppose it? If they oppose it, what do they support? It’s been more than seven months, and we still have no idea where the U.S. stands,” she tells In These Times.

According to Kilic, there is plenty the Biden administration could do right now. ​“They should support the waiver as-is,” she says, referring to the proposal put forward by India and South Africa. 

She adds, ​“They could call for a General Council meeting to get it passed. The decisions will be made by the General Council, so the ideal would be for Biden to call for the GC to get the waiver passed — the proposal as it is. Because no one knows what the U.S. proposal is.”

The involvement of the United States is critical, activists say, because of the incredible power it holds at the WTO, where it could pressure the European Union, United Kingdom and Switzerland to stop blocking the TRIPS waiver proposal. This power was acknowledged by an unnamed EU diplomat, who was quoted in a November 28 Politico article as saying, ​“They [the United States] hold the cards. If they side with South Africa and India with some sort of waiver, this risks going wrong for the EU.”

According to the summary, these countries maintained their opposition to the waiver at Monday’s meeting. ​“The European Union spoke once again of a high level of engagement and possible areas of convergence and said the right approach after MC12 [WTO Ministerial Conference] postponement is to keep exploring grounds where landing zones can be found,” the summary states. (That Ministerial Conference was indefinitely postponed due to concern about the danger the Omicron variant poses to world leaders.)

“The United Kingdom said that despite MC12 postponement, the commitment to reaching a pragmatic and tangible outcome remains and that collaboration by all is the way forward as the tone of recent discussions have shown,” the summary states. 

“Switzerland recognized the challenge the world faces in reaching the shared objective of ensuring global, equitable and timely access to vaccines and medicines against Covid-19 and underscored that intellectual property protection will also be instrumental to address the new coronavirus variant and future pandemics,” the document reads.

The effort to pass a TRIPS waiver has taken on fresh urgency in light of the new Covid-19 variant known as Omicron. The World Health Organization (WHO) says the Omicron variant poses a ​“very high” risk to the world because of its large number of mutations, although questions remain about the severity and transmissibility of the variant, as well as the effectiveness of existing vaccines against it.

A key argument among countries that support the waiver is that, without global access to Covid-19 vaccines, the virus will continue to replicate uncontrolled, leading to new variants that threaten the entire world.

At a February TRIPS Council meeting, which oversees the WTO’s intellectual property rules, South African Ambassador Xolelwa Mlumbi-Peter argued that such a waiver is critical to protect against new variants and provide global relief from the pandemic. ​“We know that this goal is only achievable when everyone, everywhere, can access the health technologies they need for Covid-19 detection, prevention, treatment and response,” she said. ​“This is a goal that members of the WTO have consistently repeated in their statements. Now more than ever, international cooperation and solidarity are vital to restore global health security, now and in future.”

Since the TRIPS waiver was proposed on October 2, 2020, more than 4 million people around the world have died from Covid-19. Numerous Global South countries — India, Brazil, Thailand, South Africa, Argentina and Indonesia — have the domestic capacity to start manufacturing mRNA vaccines, if pharmaceutical companies like Pfizer and Moderna would share vaccine recipes and technical know-how, the New York Times reported in October.

The delegates for India and South Africa reiterated these concerns at Monday’s meeting. The summary states, ​“India also regretted that what co-sponsors have been arguing all along has come true. We have always stated that the inequity in access to vaccines would lead to the rise of variants that may be more transmissible, more lethal and would circumvent the efficacy of existing vaccines, so how long can WTO members wait and at what cost to start text-based negotiations, India asked.”

“South Africa,” the document states, ​“went on saying that failure to agree on a multilateral outcome to address IP barriers, coupled with the imposition of restrictions on certain countries that run contrary to the advice and guidance by the WHO, cast a dim light on the ability of the WTO to act in solidarity during an international emergency.”