Here's another blog post that is informative. The author is a patent lawyer and he has a PhD in molecular biology and a law degree.
>>>The plain language of the press release, and the focus of the waiver that has evolved, is to include
all intellectual property. This would include trade secrets, and that raises a serious issue. As explicated by Derek Lowe in his article "
Myths of Vaccine Manufacturing," the rate-limiting step for COVID vaccine production (at least for the mRNA-based vaccines) involves proprietary machines and methods for making the vaccine that are, more than likely, not covered by patents and never will be. The technological circumstances surrounding vaccine production involve trade secrets regarding formulation of vaccines that are what can be the bottleneck in the process. But trade secrets are the type of property the rights to which
cannot be suspended; disclosure destroys the secret and thus the property. It is unlikely that companies will voluntarily give up their valuable trade secrets, and while there might perhaps be some stomach for forcing them to in some jurisdictions, it is unlikely that the U.S. will be one of them.
But this "moveable feast" of policy rationales illustrates the political fact that the aim and goal of this and other proposals by India, South Africa, and other countries is to escape the TRIPS requirement for recognizing and enforcing IP protections, imposed as part of the requirements for WTO membership. When these facts are considered, the call by these governments (and others) should be understood for what it is: an attempt to use the pandemic to achieve a goal of
status quo ante (prior to the establishment of the GATT/TRIPS/WTO global trade and patent regime), which was imposed upon these and other countries a generation ago. The COVID pandemic provides the humanitarian reason for a solution that isn't a solution but that resonates with uninformed (albeit generally well-meaning) politicians, humanitarians, and religious and non-governmental organizations. <<<
It's hard to know from the outside looking in what trade secrets might be involved. One major problem is that a forced disclosure in one country would destroy rights everywhere. On the other hand, it's not clear that a court in any given country would have jurisdiction to successfully force a disclosure against a U.S. company. Also, it's not clear that a forced disclosure of only some trade secrets would be sufficient. Assuming numerous companies in the U.S. have their own trade secrets, it's hard to see how a court in (for example) South Africa could issue a legally enforceable ruling that would force all U.S. companies involved in vaccine manufacture to disclose everything they know about the process (in layman's terms, I suspect that U.S. companies would just give them bird and cease operating in the country that issued the order).
This could lead to political pressure in the U.S. to change U.S. laws here to force across the board trade secret disclosures by U.S. companies. I have a hard time seeing congress moving forward with this if push comes to shove.
By Kevin E. Noonan -- Everybody knows that the dice are loaded Everybody rolls with their fingers crossed Everybody knows the war is over Everybody knows the good guys lost Everybody knows the fight was fixed The poor stay poor, the rich get rich That's how it goes Everybody knows Everybody...
www.patentdocs.org
