❮ Return to Our Work

Op-Ed | The American Prospect | April 23, 2021

Place Human Lives Over Pharma’s Property Rights

CoronavirusDepartment of CommerceIntellectual PropertyPharmaTrade Policy
Place Human Lives Over Pharma’s Property Rights

Read this article on the original website.

The Biden administration deserves credit for achieving what once seemed an impossible goal: opening vaccines to the entire adult population of the United States by mid-April, with the country on track for a relatively normal, COVID-free Fourth of July. This is an incredible 180-degree turn from the chaos of the Trump administration just three months ago.

That’s why it’s doubly disturbing that Biden appears to be following Trump’s playbook when it comes to addressing the pandemic outside of America’s borders. Just as that administration prioritized corporate profit over public health and vaccine equity domestically, Biden’s administration is dithering on a key decision with the same stakes globally.

As of this writing, the administration still has not supported waiving global intellectual-property restrictions on America’s COVID-19 vaccines. A waiver at the World Trade Organization would enable facilities worldwide to start producing the vaccines now going into American arms every day—and there are some facilities in every region of the world capable of producing vaccines either immediately or in the near future. Without action, the developing world may not achieve herd immunity until 2024, by which time the virus may have mutated to a point where everyone globally, including in the United States, is exposed to the danger of a COVID-19 resurgence.

Indeed, experts predict Americans will need boosters against COVID-19 possibly before the end of this year. For America, much less the whole world, to actually beat this virus, we need massively increased productive capacity as soon as possible. Artificially constraining ourselves to a sliver of the world’s total potential production due to legal restrictions would be ludicrous and literally deadly. To end the pandemic anywhere, we really do have to end it everywhere, or else there will be more and more cycles of shutdowns, quarantines, and ploddingly slow waiting for yet another new vaccine.

The only argument against lifting these IP restrictions is that doing so would decrease the power and eventual bottom line of Big Pharma, the most hated industry in the country. That might not sound like a bad thing to you or me, but apparently it’s enough to bring this White House to internal loggerheads. The question is: Who’s on the side of the people, and who’s on the side of the corporations?

For once, the Office of the United States Trade Representative, that traditional hotbed of Big Pharma handouts, is seemingly not to blame. And even Biden’s foreign-policy team is said to be on the right side of this one. After all, as we wrote in a coalition letter this week, it’s an obvious diplomatic loss if the United States prevents the developing world from ending the pandemic while China and Russia eagerly share their own, less effective vaccines.

But there’s one corner of the executive branch where the thought of lifting IP restrictions prompts a heart attack: the Commerce Department, and more specifically, the Patent and Trademark Office, which grants patents and trademarks to applicants and adjudicates some of the legal disputes that come up from its work.

Since intellectual property is such a niche and complex issue area, PTO’s Office of Policy and International Affairs ends up training diplomats and setting much of the United States’ policy goals on IP worldwide. Notably, the PTO receives no money from Congress: It’s entirely funded through patent and trademark application fees. That gives it a strong institutional incentive to prioritize the needs of applicants, and Big Pharma is a major moneymaker for the tiny agency. Though the constitutional purpose of patents and trademarks is “[t]o promote the progress of science and useful arts,” PTO for decades has seen its “customer base” solely as the patent applicants who pay it, and not the broader public whom it, like all parts of the government, exists to serve.

In other words, PTO is about as clean of a case study as you’ll find of government being run like a business. And right now, pure business logic is keeping it from supporting saving billions of lives.

PTO acting Director Drew Hirshfeld and Chief Policy Officer and International Affairs Director Mary Critharis are both career staffers who’ve been at PTO since the early 1990s. It’s unsurprising that they’ve absorbed its institutional tendencies. But for who’s pulling the political strings within the White House, one ought to look to the politicians. Specifically, the politician who is Hirshfeld’s superior, Commerce Secretary Gina Raimondo.

Before there even was a Biden presidential transition, the corporate wing of the Democratic Party was desperate to place then–Rhode Island Gov. Gina Raimondo in the administration. The Prospect reported in late October that she was under early consideration for Treasury secretary, and she then reappeared in early December as a potential head of Health and Human Services. Both times, progressives, including ourselves, shouted her down. Why? Just look at … well, any part of her record, really.

In April 2020, at the height of the COVID-19 pandemic, Raimondo did as health care lobbyists asked and immunized Rhode Island nursing homes and hospitals from civil liability for surging deaths. Four months later, Raimondo approved steep health insurance rate hikes. Then a month after that, Raimondo’s administration cut aid for Rhode Island’s poorest, “distressed” communities by 50 percent, all as her state faced record-breaking COVID-19 spread.

As for Big Pharma, Raimondo accepted thousands of dollars in campaign contributions from the Sackler family, whose Big Pharma company, Purdue Pharma, drove the opioid epidemic, and only relinquished the money after a yearslong pressure campaign. In 2017, the Raimondo administration awarded Big Pharma company (and embattled vaccine manufacturer) Johnson & Johnson a $1 million taxpayer-funded benefit package to build out a space for the company to use for just two years. According to GoLocalProv, Johnson & Johnson received the most lucrative package of any business from Rhode Island—nearly $6 million to bring just 75 jobs to the state.

Now, as commerce secretary, Raimondo is a key figure interacting with other administration leaders on her department’s issue portfolio, including intellectual property. She also surely will play a part in picking the permanent director of the Patent and Trademark Office. Commerce also houses the National Institute of Standards and Technology, which recently concluded comments on a rulemaking to more or less eliminate the federal government’s ability to mandate licensing of patented technologies developed using government funds. That would include the COVID-19 vaccines, since mRNA technology only exists thanks to federal grants. It’s unclear whether NIST will go forward with this proposed rule, especially given the unusually high level of scrutiny on intellectual property right now, what with the human rights atrocity of prioritizing property rights over human lives in a pandemic and all.

Raimondo herself is facing pressure on multiple fronts: A recent letter from 16 progressive groups urged support for the proposed WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver. A week earlier, industry ally and Republican senator Tom Tillis sent his own pro-IP letter. (Tillis previously led Big Pharma–friendly patent reform efforts and accepted more than $156,000 from pharma-tied PACs in 2019.)

One of Tillis’s closest collaborators on pharma IP policy? Delaware senator Chris Coons, a Biden ally and confidant. Coons also collaborated with racist 2024 hopeful Tom Cotton on the STRONGER Act, which strengthened corporate IP. It’s probably not a coincidence that Coons’s family business, W.L. Gore & Associates, owns at least 1,400 different patents, including several for medical devices. Coons himself owned between $1 million and $5 million of stock in the firm in 2020.

Moreover, Big Pharma companies, including Johnson & Johnson, are actively waging a lobbying campaign to the Biden administration. In a March letter that included Johnson & Johnson as a signatory, the industry’s main lobbying group, Pharmaceutical Research and Manufacturers of America, warned without evidence that eliminating intellectual-property protections on essential vaccines “would undermine the global response to the pandemic.” The letter specifically cited the proposed TRIPS waiver the Biden administration has blocked.

It’s worth noting that one of the main reasons the TRIPS waiver poses such a threat to Big Pharma is that it would cover all types of intellectual property. This issue has often been misrepresented as a fight over patents, but while patents are certainly part of the problem, there are many different kinds of IP (trademarks, copyrights, trade secrets, etc.) that restrict different parts of the vaccine production process.

So who will win Raimondo’s heart—and Biden’s? Her history shows a general disdain for progressives and enthrallment with the corporations that bankrolled her political campaigns. But the Biden administration’s failure to act, and the subsequent lack of vaccines in poor countries, is an ongoing humanitarian crisis that could eventually lead to a resurgence of the pandemic globally. The Biden administration should keep Commerce Secretary Raimondo away from decisions about how to end the COVID-19 pandemic—and prioritize an equitable and efficient global vaccination effort immediately.

PHOTO: Air National Guard Photo by Master Sergeant Janeen Miller

CoronavirusDepartment of CommerceIntellectual PropertyPharmaTrade Policy

Related Articles

More articles by Max Moran More articles by Zena Wolf

❮ Return to Our Work