The Quad TRIPS Waiver Text is not a Compromise; It is an Abomination

Every news report that says the leaked Quad text is a promising compromise is wrong. Not nearly enough attention is being paid to the fact that this text does not require or incentivize technology transfer (access to trade secret protected data, info, manufacturing know-how, quality control protocols, biologic materials, equipment specifications, operating instructions, etc.). Moderna has temporarily agreed not to enforce its patents – more than this proposed text actually accomplishes – almost a year and a half ago and that non-enforcement promise did nothing to actually capacitate any alternative producer to manufacture a bio-identical vaccine. Instead, Moderna shrewdly preserved control over its mRNA vaccine platform and thumbed its nose at all requests to enable new producers. Not enforcing or waiving patents or making it easier to obtain an involuntary license to patents gets you in the kitchen but without the recipe, tools, ingredients, and equipment to bake a vaccine, you are still left empty-handed and hungry.

More reporting has focused on the failure to address tests and therapeutics but without outrage over the gross hypocrisy of the U.S. in insisting that other countries not have expanded, expedited, and cheaper access to the very out-patient medicines that it has been stockpiling and which President Biden bragged about in his recent State of the Union address announcing a test-to-treat initiative. Low-income countries test at 1/100 the rate of high-income countries and outpatient therapies are essentially non-existent in developing countries.

To make matters even worse, the proposed test requires full and continuous monitoring and detailing of the patent landscape on vaccines and all their patented components in order to effectuate the proposed patent override solution. mRNA vaccines are reported to have 280 components and a flurry of COVID-19 patent applications continue to be filed, many of which are not even published, let alone granted, so as to be available for required listing. Patent due-diligence researchers rejoice, while Pharma chuckles away at another purposeless procedural barrier.

The U.S.’s Pharma-pandering focus on vaccines only and the E.U.’s dishonest focus on a compulsory license-centric override of patents only is not just the least common denominator of two big-power demands. It is a capitulation to the status quo demands of Big Pharma, the puppet master behind the scenes pulling the strings of governments and international organizations while it rakes in billions of dollars per week from monopoly prices on essential health technologies. Any and all policymakers who want a real solution to vaccine shortages, price profiteering, and inequitable distribution and who think people all around the world, especially those left behind by vaccine apartheid, should be entitled to know their status and to connect to care to receive life-saving medicine should work tirelessly to dump this ineffective and misleading “compromise” and pass a real waiver that immediately removes all IP barriers to all COVID-19 health technologies. The bad faith encapsulated in this proposed “solution” draws even more attention to the urgency of adopting new IP rules that address future pandemics and the broader need to make health technologies global public goods.