The U.S. Constitution spells out the rights, privileges, and responsibilities of the American people.  Friday, September 17, 2021, marks the 234th anniversary of the adoption of this venerable document.  Among the rights spelled out in the constitution is the protection of intellectual property (IP), as noted in the General Welfare Clause, Article 1, Section 8.  These are the only property rights included in the document:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

These protections became even more important over the past two years, as pharmaceutical companies strived to develop new vaccines to combat COVID-19 and its mutating variants.  The IP developed by these companies has been critical to the fight against this disease, and the vaccines have proven to be effective and instrumental against hospitalizations and death.

Unfortunately, even with the success and investments made by companies to combat this and other diseases, there are some who try to diminish the IP rights for these companies.  The World Health Organization (WHO) has pushed for broader dissemination of IP to combat the COVID-19 virus through IP waivers, as noted by Director General Dr. Tedros Adhanom Ghebreyesus, so that other countries will be allowed to produce vaccines regardless of the existence of patents for those drugs.  However, once the WHO begins to pursue IP waivers for this pandemic, what is to say that additional IP waivers won’t be requested for future drugs to treat other diseases.  Using IP waivers to gain access to drugs without having to invest the millions of dollars in research and development is not a new concept, in the 2014 book, Intellectual Property Rights: Making It Personal, CAGW noted that several U.S. trading partner governments were claiming they had a “moral obligation to make cheaper, generic drugs available to their populations,” including by limiting or voiding patents.

On May 5, 2021, President Biden announced that he would support waiving intellectual property protections for COVID-19 vaccines under the Trade-Related Intellectual Property Rights (TRIPS) agreement.  But, as noted by Michelle McMurry-Heath in an August 18, 2021 op-ed in STAT News, “Covid-19 vaccines are already remarkably cheap, and companies are offering them at low or no cost to low-income countries.  Poor access to clinics and transportation are barriers in some countries, but the expense of the shot itself is not.  In fact, if the World Trade Organization grants the IP waiver, it could make these vaccines more expensive.”

Ms. McMurry-Heath is correct, and if the present administration continues down the path of devaluing IP rights for pharmaceuticals, the development of new innovative drugs and technologies that will drive the world into a better future and enable the U.S. to maintain its leadership in the global community will be severely harmed. 

Democrats in Congress are also pushing a serious threat to IP rights through the provisions of H.R. 3, which may be included in the House Ways and Means Committee provisions of the budget reconciliation legislation.  The original bill includes a 95 percent, retroactive tax on pharmaceuticals if the manufacturer fails to agree to government-mandated prices.  This tax “is tantamount to the theft of intellectual property and would destroy innovation in the pharmaceutical industry.”

The nation’s Founding Fathers understood the value of intellectual property.  Congress and the Biden administration must not remove or diminish IP protections for life-saving pharmaceuticals.