Washington Journal of Law, Technology & Arts


The Biden Administration announced its support for the initiative at the World Trade Organization (WTO) to suspend patent rights protections for COVID-19 vaccines, in the hope of providing equitable and affordable access to the vaccines to low-income countries. Since then, domestic pharmaceutical companies have been voicing vociferous opposition, claiming that “[e]liminating IP protections undermines our global response to the pandemic and compromises safety.”2 Passing a patent waiver at the WTO means eligible member countries can opt to free themselves from the obligations to enforce qualifying patents, and anyone within those countries can accordingly practice the patents without infringement liability. It follows that the adoption of the waiver would impair American patentees’ rights in those eligible countries.

Americans, however, are protected by the Constitution of the United States, and the Takings Clause of the Fifth Amendment guards private property against unlawful seizure by the United States government. This Article examines the role the Takings Clause plays in prescribing United States actions committed to adopting and implementing a patent waiver, and concludes that the Takings Clause does not prevent the United States from supporting passage of the waiver at the WTO, but would prevent its domestic implementation if the United States were made an eligible country to invoke the waiver. The conclusion is consistent with the final waiver adopted by the WTO, where the United States is not an eligible country.

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