WASHINGTON – U.S. Senators Chris Coons (D-Del.), Thom Tillis (R-N.C.), Mazie Hirono (D-Hawaii), and James Lankford (R-Okla.) wrote today to U.S. National Security Advisor Jake Sullivan to express “serious concerns” about the World Health Organization’s (WHO) proposed global accord on pandemic prevention, preparedness, and response, which would weaken intellectual property (IP) protections for companies that use public funding to develop successful pandemic-related treatments. Such a move would disincentivize research and development into vaccines for future pandemics, hindering the global ability to respond to another public health emergency. While the U.S. Department of Health and Human Services (HHS) has issued a request for public input (RFI) on the proposed WHO agreement, the Senators urged Sullivan to explore additional feedback.

The lawmakers wrote, “We agree that it is critical to prepare for the next pandemic and, in doing so, to think about how we can promote better global access to vaccines and medical treatments. We are concerned, however, that the proposed agreement threatens these laudable goals by undermining intellectual property (IP) laws based on a faulty premise that IP rights impeded the global response to the COVID-19 crisis. The facts tell a different story. Indeed, a recent U.S. International Trade Commission report investigating the supply and demand of COVID-19 diagnostics and therapeutics found that many factors other than IP were responsible for barriers to treatment access, including distribution challenges, delays in regulatory approval, weak healthcare infrastructure, and insufficient health education. …

They continued, “The draft agreement under consideration, however, contains many provisions that would undercut – If not destroy – the very aspects of our innovation ecosystem that just recently produced such positive results. For example, the proposal mandates that companies that receive public funding will have to essentially give away their IP if they develop a successful treatment, whether through compulsory licensing, non-exclusive licensing, or by foregoing royalties. The proposed language does not limit these IP waivers to vaccines or medical treatments; instead, the waivers would apply to all ‘pandemic-related products' – a term that broadly includes any ‘products that are needed for pandemic prevention, preparedness and response.’ This means that if a company successfully develops a pandemic-related product, that company will not be able to realize any return on investment, thereby discouraging the acceptance of public funding or pursuing research and development for public health products in the first place. In future pandemics, governments may offer money only to find that no one will accept it. As a result, governments would lose a critical tool to address future public health crises. …

They concluded, “We commend the initiative to improve the global response to the next pandemic, but waiving a broad scope of IP rights is the wrong way to accomplish that goal. As such, we urge you to seek significantly more public feedback than the recent HHS RFI, through hearings and studies, to inform U.S. input on the WHO pandemic agreement.”

Senator Coons is Chair of the Senate Judiciary Committee’s Intellectual Property Subcommittee, Chair of the Senate Appropriations Committee’s State and Foreign Operations and Related Programs Subcommittee, and Co-Chair of the Senate Caucus on Malaria and Neglected Tropical Diseases.

The full text of the letter is available here.