WASHINGTON, D.C. – U.S. Senators Marsha Blackburn (Tenn.), Cynthia Lummis (Wyo.), and Tommy Tuberville (Ala.) introduced legislation to protect the intellectual property of American life sciences innovators from falling into the hands of foreign adversaries like Communist China.

On June 22, 2022, the World Trade Organization (WTO) approved a Trade-Related Aspects of Intellectual Property (TRIPS) waiver for COVID-19 vaccine patents. The compromise allows developing countries with low vaccine exports to use patented vaccine formulas without the intellectual property owner's approval. The Office of the United States Trade Representative (USTR) claims that a waiver would promote greater global production and access to vaccines, but the impact on overall vaccine access has been minimal at best.

The WTO is currently considering expanding the TRIPS waiver to COVID-19 diagnostics and therapeutics.

The No Free TRIPS Act would prohibit the Biden administration from negotiating or affirming any withdrawal, suspension, waiver, or modifications to the World Trade Organization (WTO) TRIPS agreement, without explicit authorization from Congress.

“American life sciences companies engage in critical research and development, and it is essential that we protect their intellectual property rights,” said Senator Blackburn. “During the COVID pandemic, the private sector answered the call and moved swiftly to develop world-class, life-saving vaccines, diagnostics, and therapeutics. Expanding the World Trade Organization’s TRIPS waiver to COVID-19 therapeutics and diagnostics would undermine the intellectual property protections that made these biomedical advances possible and will disincentivize these companies from acting in the event of another public health emergency. It is important to protect technology developed by our robust private sector from falling into the hands of foreign adversaries like Communist China that are actively working to steal American IP at the expense of U.S. companies. This bill would establish an important check against the Biden administration’s ability to suspend these protections without congressional authorization.”

“The United States produces some of the most advanced medical technology in the world. We should protect our advantages when it comes to the developments we have made in those technologies. Now, more than ever, our focus should be on defending intellectual property rights while also incentivizing the development of other life-saving treatments to provide to other nations. I am proud to join Senator Blackburn to reintroduce this legislation,” said Senator Lummis.

“The power of American ingenuity has produced life-saving pharmaceuticals and medical technology for decades,” said Senator Tuberville. “Those scientific breakthroughs were made possible by American investments, experts, and companies. Those private companies have a right to protect their intellectual property, especially from bad actors like China and Russia. We cannot keep our place as the world’s leading medical innovator if the government purposely drives the industry out of business.”

BACKGROUND:

• Expanding the TRIPS waiver to diagnostics and therapeutics will disincentivize the creation of new COVID-19 tests and treatments.
• As of the end of 2022, no country has declared intent to utilize the waiver. Waiving private US companies’ IP rights not only allows countries to freeload off US private investment for their own commercial products, it undermines American innovation and domestic investment into biopharmaceutical research and development.
• If a developing country decided to utilize the waiver, it is likely this technology would then be transferred to adversaries like Russia and China.
• In December, the USTR asked for an extension on the WTO’s decision on the expansion of the waiver to COVID-19 diagnostics and therapeutics and asked the United States International Trade Commission (USITC) to conduct a factfinding investigation to inform consideration of whether to extend the TRIPS flexibilities to diagnostics and therapeutics, which is currently underway.
• The USITC anticipates completing and submitting its report to the USTR on October 17, 2023.

The bill text is available here.