In some ways this is just a recent example of the never-ending back and forth concerning IP between developed countries and developing countries. Less developed countries do not have the resources to to invest in R&D so they have an incentive to provide weak domestic IP rights and copy innovations developed in other countries. The problem is that these countries will never attract R&D investments or develop sophisticated domestic capabilities if they don't provide domestic IP protection (some would argue that governments can provide the necessary R&D spending without IP protection)
Simplifying greatly, TRIPS (first link below) is basically an agreement by WTO countries that says "We [the developed countries] will let you [the less developed countries] sell goods to our countries if you agree to provide IP protection in your countries [i.e. stop stealing our IP]"
IP protection for medical devices and pharmaceutical products has always been a contentious issue. One side argues that it's unethical, etc. to profit from these technologies. The other side argues (as Irv does) that the technologies won't exist if there's no incentive to invest in the necessary R&D (full disclosure: I generally agree with Irv on this). The counter argument is normally that government spending can provide the necessary incentive (or, in the context of international trade, that the companies make enough money in the developed countries already). The counter argument to government funded R&D is that governments are not good at picking winning technologies. A counter argument to this is that free markets do respond well to large problems that require investments beyond the capability of private companies. The same basic arguments have been going on forever.
Back to TRIPS and your question about licensing, some background may be in order. There are no compulsory licenses in the U.S. (outside of a few specific situations). In general, a patent owner does not have to produce a product covered by a patent, and a patent owner does not have to license. Some countries have compulsory licensing which means another company can use a patented invention but they have to pay a license. Arguments for and against compulsory licenses have gone on for years.
TRIPS already includes a compulsory license provision if the IP owner has refused a reasonable offer, but developing countries want a waiver so they don't have pay anything at all (in a sense a temporary free license). Most of the mainstream media coverage ignores the existing TRIPS compulsory licensing provision.
I'm not sure a waiver, by itself, would actually make that much difference with regards to the RNA vaccines (the RNA vaccine IP seems to be the main issue). A lot of know how and practical knowledge is required to produce the vaccines (not to mention the capital required), and even the companies that developed the technology are having difficulty ramping up production. Licenses typically include patent rights, know how, and trade secrets. Even if the waiver goes through, the IP owners could refuse to provide know how and trade secrets. Trying to force this strikes me as a losing proposition.
My initial impression was that the demand for a waiver was a political ploy to apply pressure for a very low royalty rate. However, the news reports seem to suggest that the countries pushing the waiver are not just negotiating for a cheap license. Either they naive about the need for know how, or they believe they can apply political pressure for access to the know how after they get a waiver.
Overall, I'm not wild about the waiver because it reduces the incentive to invest going forward and I doubt that a waiver would really make that much difference. Having said that, I'd concede that there's something to the ideas that: 1) the economic well being (and health) of the developed countries depends at least to some degree on ending the pandemic around the world, and 2) a lot of the funding in the U.S. was provided by the government, so it's not clear incentives to create private investment are critical.
Of the following, in my opinion, the jdsupra note has the best legal insights, but the law360 article is pretty decent. The ipwatchdog article is weak on support for the central assertion, but it provides another point of view. The pharm article seems to be biased the other way (in favor of the Pharm companies), but the lawyer quoted in the article (Silverstein) makes some good points.
en.wikipedia.org
Discussions are underway the WTO about whether an IP waiver for Covid-19 vaccines could help resolve the pandemic access issues.
www.pharmaceutical-technology.com
Companies holding intellectual property in medical products used in the fight against COVID-19 should be aware of formal efforts by a group of nearly...
www.jdsupra.com
Intellectual property protection has played an important role in this pandemic. Nevertheless, India and South Africa initiated a proposal in October that is gaining traction among like-minded World Trade Organization members.
www.ipwatchdog.com
On the one-year anniversary of its declaration of a global pandemic, the World Trade Organization stayed the course Thursday and failed, again, to reach an agreement on a proposal to temporarily waive any intellectual property rights for vaccines and treatments related to COVID-19.
www.law360.com
