IP waiver talks hinge on use of Big Pharma's trade secrets

As advocates for a World Health Organization proposal to temporarily waive intellectual property protections for COVID-19 vaccines try to win more support from developed countries, one obstacle to reaching consensus is whether compulsory licenses will require pharmaceutical companies to divulge trade secrets, say experts reported by Law360, a LexisNexis which is providing free access to its coronavirus coverage in an effort to ensure the legal community has accurate information.

As talks to reach an agreement on the waiver proceed, supporters say it will be critical for pharmaceutical companies to disclose the know-how to reproduce the vaccines since those conditions can't be easily replicated, particularly for the mRNA vaccines produced by Pfizer (NYSE: PFE) and Moderna (Nasdaq: RMNA). That disclosure could include having pharmaceutical companies providing training, technical assistance, materials and company documents.

However, pharmaceutical companies are unlikely to hand over valuable trade secrets willingly, and it's unclear if they could be forced to under a compulsory license, experts say.

Negotiations over the waiver will very likely hit a snag when it comes to trade secrets, according to Lisa Ferri, global co-chair of Mayer Brown’s intellectual property practice.

The waiver, proposed by South Africa and India and supported by more than 100 other World Trade Organization (WTO) member countries, would specifically suspend four provisions of the 1995 Trade-Related Aspects of Intellectual Property Rights, or TRIPS, agreement requiring WTO members to enact laws protecting IP.

The revised version released Tuesday said the waiver should be in force for three years. While the original version said the waiver should apply to preventing, treating and containing COVID-19, the revised version specified it was targeted at "health products and technologies."