What is a Patent Waiver?

The term “patent waiver” has dominated domestic intellectual property news since President Biden announced his support for a World Trade Organization (WTO) proposal waiving IP protection for COVID vaccines. 

Usually, IP rights are protected and enforced on a global scale by the WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The Agreement requires member countries to offer patents for novel and nonobvious products and processes. Additionally, patent holders must be able to enforce their IP rights in ways that are “fair and equitable, and not unnecessarily complicated or costly.” 

The WTO vaccine patent waiver presented by India and South Africa in the fall of 2020 would allow member countries to opt out of these TRIPS requirements without fear of legal repercussions from patent holders or other member countries. The waiver, as it’s currently written, includes inventions related to “the prevention, treatment or containment of COVID-19.” 

This specific example of waiving patent protection has prompted many questions about patent waivers in general. 

What is a patent waiver?

A patent waiver is an extreme version of technology transfer, which is the sharing of innovative products, processes, and other relevant knowledge for either commercialization or the greater good. Technology transfer generally happens via the licensing or sale of a patent, rather than waiving patent protection altogether. 

Some industry experts expect the WTO to end up implementing vaccine equity using a less drastic method of technology transfer. Krishna Udayakumar, director of the Duke Global Health Innovation Center, points out that, in the past, the threat of a patent waiver encouraged more moderate compromises. 

Patent Waivers in Practice

The concept of patent waivers is not unheard of in other situations. For example, the US Department of Energy regularly waives its patent rights to innovations it funded or otherwise contributed to. This way, corporations more well-suited for commercializing the technology (or bringing it to market for the greater good) can do so.