USITC avoids taking sides in 497 page report on WTO limited patent extension of exceptions for COVID 19

The USITC has issued a 497 page report on the WTO negotiations over TRIPS and COVID.

The USITC release states:

The U.S. International Trade Commission (USITC) today released a report about COVID-19 diagnostics and therapeutics and certain flexibilities under the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), among other topics. The investigation, COVID-19 Diagnostics and Therapeutics: Supply, Demand, and TRIPS Agreement Flexibilities (Inv. No. 332-596), was requested by the U.S. Trade Representative (USTR) in a letter received on December 16, 2022.

My reaction?

I don’t want to seem too unkind here to the USITC and its staff, but the 497 page report covers a lot of well known ground, and does not do anything to resolve the central question: does the US support or oppose the extension of the June 17, 2022 decision to therapeutics and diagnostics? It’s not that complicated, but the USITC report reads as though it is unwilling to make enemies with groups on either side. That said, the USITC process was used to delay and delay any decision at the WTO, and here we are, October 2023, years into what was once considered an emergency, with a sort of literature review, and no end in sight on these talks.

The WTO’s June 17, 2022 decision vaccines is very narrow and flawed, and now the negotiations are mostly a time and resource consuming distraction. If USTR or the WTO can’t resolve the extension issue, in the face of the obvious fact that WTO imposed limits on international trade are a bad idea (economies of scale and comparative advantage obviously are important) it is time to move on and acknowledge failure.

Meanwhile, the European Union is moving toward a far broader exception for emergencies that will be permanent, not limited to one disease or specific countermeasures, deals with rights in test data, has a measure to deal with know-how, and caps royalties at 4 percent of the generic price. All the while the United States continues to grant exceptions to patent rights in hundreds of FAR 52.227-1 clauses in contracts, and through judicial decisions in injunction cases.

Another way to put this, the USITC issues 497 page report saying it is not sure that economies of scale and comparative advantage are important, when it comes to the health of people living in developing countries. Calls for more studies.

Some commentary on the report

  • Statement from Ambassador Katherine Tai on the Release of the USITC Report on COVID-19 Diagnostics and Therapeutics, October 17, 2023. Press Release.
  • BIO: New USITC report shows “no credible evidence” supporting a TRIPs waiver expansion. October 17, 2023. October 17, 2023. Press Release