Stumbling Over Trips: The International Intellectual Property Waiver Petition and The U.S. Executive

This article examines the relationship among intellectual property (IP) law protections; United States (U.S.) and international law and policy; and the actualization of diagnostics, drugs, and vaccines in the time of the COVID-19 coronavirus. Two key international treaties that relate to IP law--The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and the Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) - establish international norms for the protection of IP. Core aspects of each of these treaties are described along with the role of the World Trade Organization (WTO) and concepts of compulsory licensing. As a result of COVID-19, there have been recent calls for an international IP waiver to TRIPS to address disparities in access to health and medical products during the pandemic. The article traces the timeline of the waiver petition, beginning with its initiation by South Africa and India in October 2020, through the emergence of the omicron variant in November 2021. The waiver continues to generate significant controversy, with staunch opposition from the European Union and several other developed countries, including early opposition from the U.S. The Biden Administration has signaled support for the waiver, although the extent of that support has not been fully demarcated. Several alternative models have arisen, which are also discussed in connection with the general lack of progress of the WTO to implement any such waiver as of early 2022.