USCIB Urges Biden Administration to Oppose Extending TRIPS Waiver to COVID Diagnostics, Therapeutics

USCIB is urging the Biden Administration to oppose current efforts at the World Trade Organization (WTO) to extend a waiver of rules under the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement to COVID-19 diagnostics and therapeutics. USCIB remains disappointed with the TRIPS waiver for COVID-19 vaccines announced at the 12th Ministerial Conference of the WTO in June; it is staunchly opposed to extending the waiver to COVID-19 therapeutics and diagnostics.

Rules under the TRIPS Agreement are being challenged today by nations seeking to leverage the pandemic to gain unfettered access to competitively sensitive, proprietary biopharmaceutical manufacturing technology. In a letter to senior Administration officials dated September 12, USCIB contends that the TRIPS agreement provides ample flexibility to address disparities in access to medicines and treatments; the real problem is insufficient healthcare infrastructure and distribution systems necessary to distribute and adminster vaccines and medicines to remote populations around the globe, as well as residual vaccine hesitancy.  “Extension of the TRIPS waivers is a solution in search of a problem, undermining innovation, global health security, international rule of law, and faith in the global trading system,” argued USCIB Senior Vice President for Innovation, Regulation and Trade Brian Lowry.

USCIB further asserts that “it took decades studying coronaviruses and developing messenger RNA (“mRNA”) technologies to lay the foundation for the highly effective COVID-19 vaccines and other medicines of today. These revolutionary innovations, developed at unprecedented speed and scale, were fueled by global rules that protect IP which provide companies with confidence to undertake high-risk ventures over extended timelines.”  No nation has more to lose from weakened intellectual property rules than the United States, which leads the world in biopharmaceutical and technological research, Lowry stressed.

The letter was addressed to Secretary of State Antony Blinken, Secretary of Commerce Gina Raimondo, United States Trade Representative Katherine Tai, Assistant to the President for National Security Affairs at the National Security Council Jacob Sullivan, Director of the National Economic Council Brian Deese, Coordinator of the COVID-19 Response and Counselor to the President Ashish Jha and Director of the U.S. Patent and Trademark Office Kathi Vidal.

Temperatures Soared in Geneva and So Did the WTO!

Washington D.C., June 17, 2022—Despite a shaky start, the WTO negotiators delivered a historic trade deal this morning. After hours of negotiations, the 164-country organization adopted the “Geneva Package” with commitments on some very difficult issues, including pandemic response, intellectual property, fisheries, food security, electronic commerce and institutional reform.

For many, this Ministerial was about the continued viability of the WTO. Recent struggles caused by increased protectionism and previous Ministerial Conferences that created few – if any – outcomes, raised serious questions about the rules-based trading system that grew out of the GATT in 1995. Concerns have ranged from relevance to functionality to value.

The WTO adoption of a ministerial decision to waive intellectual property rights on COVID-19 vaccines raises serious questions and presents a number of risks. This waiver under the WTO TRIPs Agreement will not solve vaccine access issues but, rather, it brings dangerous implications on incentives for innovation for future health challenges and future pandemic preparedness and response.  As disappointing and counter-productive as this decision is, business continues to work to advance vaccine literacy and fight COVID-19.

The Ministerial Statement on WTO Reform has charted a path forward for the trade body that is expected to address longstanding concerns and set a process for discussions on how the WTO can be reformed to be fit for purpose.

The “Geneva Package” covers a range of topics. A group of Ministerial Declarations was adopted on WTO response to emergencies covering food insecurity; export prohibitions on World Food Programme food purchases; and WTO pandemic response and preparedness.

A partial deal to curb fishing subsidies was reached; however, it fell short of a fuller agreement that has been under negotiation for more than 20 years. The agreement addresses rules to prohibit subsidies for illegal, unreported and unregulated fishing, while action on subsidies for fuel, ship construction and other areas was left unresolved.

Negotiators wrestled to address divergent views on the continuation of a moratorium on customs duties on electronic transmissions that has been in place since 1998 but was set to expire at the end of the ministerial. A handful of countries challenged the benefits of the digital economy for the developing world, seeking to end the moratorium, gain policy space to address the digital divide and collect needed customs revenues. Ultimately, delegates agreed to an extension of the moratorium with a commitment to study development impacts and revisit the issue at the next Ministerial Conference.

“USCIB congratulates WTO Director General Ngozi and all participants in MC12 for proving that multilateralism is alive and still functional in Geneva,” said Brian Lowry, USCIB Senior Vice President, who is reporting from Geneva at the ministerial meeting as an NGO delegate.

Several concerns about agriculture went without resolution. “The lack of a declaration on these concerns was a disappointment to some but the overall success of MC12 is noteworthy,” said Lowry.

About USCIB: USCIB promotes open markets, competitiveness and innovation, sustainable development, and corporate responsibility, supported by international engagement and regulatory coherence. Its members include U.S.-based global companies and professional services firms from every sector of our economy, with operations in every region of the world. USCIB is the U.S. affiliate of the International Chamber of Commerce (ICC), the International Organization of Employers (IOE) and Business at OECD. More at www.uscib.org.

USCIB Promotes World IP Day; Encourages Members to Vote in Youth Video Competition

Photo credit: WIPO

The World Intellectual Property Organization (WIPO) is hosting their annual World Intellectual Property Day on April 26 with a focus on youth. The official theme, “IP and Youth Innovating for a Better Future,” recognizes the incredible and untapped potential of young people’s ingenuity and creativity which can drive the change the world needs to move to a more sustainable footing.

According to WIPO, IP Day 2022 is an opportunity for young people to find out how IP rights can support their goals, help transform their ideas into reality, generate income, create jobs and make a positive impact on the world around them. WIPO has been working with its member states and partners to create a legal and policy environment for young inventors, creators and entrepreneurs to thrive.

WIPO has also invited the public to vote on a youth video competition. The videos will demonstrate how young people perceive innovation and IP for a better future. Youth from sixty-three countries have submitted videos. Online public voting closes on April 22.

“Young people are the future and we must support them,” said USCIB Senior Vice President for Innovation, Regulation and Trade Brian Lowry. “We look forward to IP Day where we can better explore and understand how young people have been driving change.”

USCIB Leads Business Policy Roundtable as Part of Brazil’s Accession to OECD 

The Brazil OECD Business Policy Roundtable brought together U.S. and Brazilian government officials, the OECD and industry representatives in early November to discuss taxation reform and best practices as Brazil seeks to accede to the OECD.  According to USCIB Director for Investment, Trade and China Alice Slayton Clark, this is the latest of the several forums held by the Brazil Roundtable to explore changes to policy and practice – in line with OECD standards and best practices – that benefit businesses and employees while driving inclusive economic growth in Brazil.

Isaias Coelho, special advisor to Brazil’s Ministry of Economy, and Sandro de Vargas Serpa, undersecretary of Taxation and Litigation at the Federal Revenue of Brazil (RFB), detailed the regulations and legislative proposals under consideration that would simplify taxes at the state, federal and municipal levels, reforming consumption, income and international taxation practices.

“Brazil is currently undertaking significant regulatory reforms consistent with OECD guidelines including Recommendations of the Council on Regulatory Policy and Governance,” said Coelho. The ultimate hope, according to Mario Sergio Carraro Telles, executive manager of Economics for the Brazil Industry Association, is to adopt laws that simplify the tax system and reduce costs and uncertainty for companies.

Brazil has been working since 2018 in a dialogue with OECD on transfer pricing, which has evolved into a project aimed at aligning the existing transfer pricing regime with the OECD standard.  This joint project was made possible with the support of UK Prosperity Fund and other OECD countries who share their experience and best practices with Brazil. The United States has bolstered this process through technical assistance and training, asserted John Hughes, director of Advanced Pricing and Mutual Agreement Program of the U.S. Internal Revenue Service.

According to OECD Senior Advisor Tomas Balco, current policies in Brazil end up double taxing multinationals, deterring foreign investment and preventing Brazil from participating fully in global value chains. Luiz de Medeiros, Brazil country manager for IBM and a USCIB member, provided details from an industry perspective, expressing “great hope” that Brazil laws can be aligned with OECD norms.  Toward that end, Flávio Antônio Gonçalves Martins Araújo, head of the International Relations Office at RFB, reported that Brazil Administration currently is working on a legislative proposal to submit to Congress and start a political discussion in 2022 on a new transfer pricing law.

“It is clear from the speakers that the mood is right for reform in Brazil, and efforts are being made despite the economic challenges posed by the pandemic,” said Clark. “We hope these roundtables can inform and inspire in that regard, offering solutions for change that ease the economic burden for all.”

USCIB led the meeting, along with cohorts from the Brazil-U.S. Business Council of the U.S. Chamber of Commerce and Brazil’s National Industry Confederation (CNI). As the official U.S. representative to Business at OECD (BIAC), USCIB has been actively monitoring Brazil’s accession request to the OECD in order to advance business interest.

Additional roundtable discussions will be held throughout 2022, covering investment and trade, environment and sustainable development, as well as innovation and intellectual property.  Digital and regulatory issues were discussed earlier this year.

World Intellectual Property Organization, USCIB Hold Virtual Dialogue

The World Intellectual Property Organization (WIPO) and USCIB held a virtual dialogue on July 29 with over twenty participants, including USCIB members and WIPO Assistant Directors General Marco Aleman and Edward Kwakwa.

According to USCIB Senior Vice President for Innovation, Regulation, and Trade Brian Lowry, the dialogue covered a range of topics of interest to USCIB members. Specifically, WIPO leaders engaged on the following: The Hague System for the International Registration of Industrial Designs; Intellectual Property (IP) and Innovation Ecosystem Sector; WIPO Arbitration and Mediation Center; Building Respect for Intellectual Property; WIPO’s Department for Economics and Data Analytics; WIPO GREEN; Geneva Intellectual Property Discussions

“It was clear from the increased activity at WIPO in the past 18 months that WIPO is very much alive and functional, even in these most difficult times,” said Lowry.

“In addition to the wealth of information provided, the Dialogue provided members with new opportunities to advance their business objectives with support from WIPO programs, initiatives, and personnel. WIPO leadership specifically requested members to contact them with their specific interests for further engagements to advance projects and outcomes, as well as to identify opportunities to help advance the youth and IP initiative which was discussed briefly,” he added.

USCIB-IOE United Nations Side-Event Focuses on Global Recovery, Private Sector Innovation

As in previous years, USCIB, as part of the recognized Business and Industry Major Group at the United Nations in New York, hosted a side-event during the United Nations High-Level Political Forum (HLPF). Co-organized with the International Organization of Employers (IOE), this year’s event focused on private sector partnerships and contributions to the UN Sustainable Development Goals (SDG’s) and to powering a global recovery from the pandemic’s economic and social devastation.  A key element of this official HLPF business side-event was on encouraging and deploying business innovation.

The event brought together leaders from companies, employer organizations, the multilateral system, and more, to explore the innovative ways that business can be a valuable partner in defeating the pandemic, while restoring lost progress towards SDG’s. The event featured two panels; one focused on COVID-19 recovery and the second on private sector innovation, including on addressing climate change and the digital divide. USCIB speakers from Microsoft and Novozymes flagged the criticality of business engagement through partnerships with government, UN bodies and other stakeholders.

“Building forward better sustainably in the Decade of Action and Delivery will require a stronger than ever commitment to multi-stakeholder engagement and partnership,” said USCIB Senior Vice President Norine Kennedy. “Business is committed to the SDG’s, not only because implementing the 2030 Agenda is the right thing to do, but also because of the strong business case for doing so. The UN 2030 Agenda for Sustainable Development offers business opportunities for new markets, job creation and sustainability solutions.”

Dr. Scott Ratzan provided an update on The USCIB Foundation’s initiative, “Business Partners to CONVINCE,” and its Global COVID-19 Workplace Challenge, which is tackling vaccine hesitancy and misinformation, especially in the work place.

According to Dr. Ratzan, “the private sector has been at the forefront of tackling the pandemic – from the historic race to develop vaccines, to opening premises to production of PPE and vaccination campaigns, to training and educating employees on public health and safety. Business has shown that it can and should be a meaningful partner in building back better, contributing not just funding, but innovation, expertise, technology, fresh ideas and diverse perspectives of business and employers, particularly Small and Medium Enterprises, who are so crucial to economic growth at the local level.”

Accepting USCIB Amicus Position, Appeals Court Rejects FTC Approach to Antitrust Liability for Trademark Settlements

The U.S. Court of Appeals for the Second Circuit has vacated the Federal Trade Commission’s (FTC) decision that 1-800 Contacts engaged in illegal agreements with rival online contact lens sellers on June 11, 2021.

In 2018, the Commission imposed antitrust liability against 1-800 Contacts years after it settled at least fourteen trademark infringing lawsuits against competing online retailers. The Commission alleged the settlements restricted trade by preventing all parties from bidding on each other’s trademarked search terms. USCIB filed an amicus brief in support of 1-800 Contacts during the appeal, arguing, among other things, that the Commission’s decision ignored the critical importance to business of intellectual property rights and that enforcing the FTC’s ruling would unfairly apply the lawful exercise of such rights to a higher pro-competition standard.

According to Bryan D. Gant of USCIB member firm White & Case, the Second Circuit’s opinion rejected both the idea that settling trademark disputes is “inherently suspect,” and that this standard could be applied to future cases. The court also overruled the Commission’s attempt to treat mere anecdotal price differences as direct evidence of anticompetitive conduct and directed that any “less restrictive alternatives” the Commission proposes be realistic. Bryant cautions, however, that in a footnote to the opinion, the Second Circuit leaves open the possibility that negative keyword advertising—paying to have a competitor’s name not appear in the search—might raise antitrust concerns, but the Court refused to consider it in this case as the issue was not squarely addressed by the FTC.

“USCIB is pleased that the Second Circuit decision largely accepted its amicus brief, rejecting the FTC’s approach to antitrust liability for trademark settlements, avoiding the potential negative impacts the decision would have had on businesses, consumers and competition,” asserted USCIB General Counsel Nancy Thevenin. The case is now remanded back to the Commission with instructions to dismiss.

USCIB is grateful to Eileen M. Cole, Bryan D. Gant and Seiji Niwa of member firm White & Case and USCIB Competition Committee leadership for their excellent work on the amicus brief.

The Second Circuit opinion is available here.

USCIB Raises Concerns About a Vaccines Waiver at WTO

USCIB joined a multi-industry letter to World Trade Organization (WTO) Director-General Dr. Ngozi Okonjo-Iweala regarding the ongoing discussions of a waiver of certain intellectual property (IP) rights for the prevention, containment and treatment of COVID-19.

Serving as representative for Business Partners to CONVINCE, an initiative of The USCIB Foundation, Brian Lowry, USCIB senior vice president, wanted to ensure that USCIB was doing its part to help improve vaccine availability.

“Fundamentally, the letter raises concerns about the practical impact of the waiver of IP rights on the real issues of distribution and administration of the vaccines,” Lowry said. “The challenges here are multifaceted and need a holistic approach, rather than one narrowly focused on intellectual property. There are trade-related obstacles that are preventing timely – and equitable – access to these critical products.”

The letter highlights genuine trade barriers such as export restrictions and technical regulations, quarantine obligations on essential transport and logistics services providers, as well as the removal or reduction of tariffs on goods that are considered essential to fighting the COVID-19 pandemic.

The letter also stated that industry agrees with world leaders that “nobody is safe, until everyone is safe” and is proud of how many companies have mobilized and shifted resources to help meet this challenge.

In addition to USCIB, the letter was signed by the Canadian Chamber of Commerce, BusinessEurope, the Federation of Korean Industries, the U.S. Chamber of Commerce and the Global Innovation Policy Center.

USCIB Leads in Preparations for Upcoming China Meetings at OECD

USCIB members and staff played leading roles in the April 23 China Expert Group’s preliminary meeting to preview and discuss Business at OECD (BIAC) presentations that will be made at the kick-off session of the OECD’s Informal Reflection Group on China in May. During the preliminary meeting, BIAC experts, including USCIB Senior Advisor Shaun Donnelly and Dell’s Eva Hampl (formerly USCIB and now a Vice Chair of BIAC’s China group), advanced key points that BIAC will emphasize including on state-owned enterprises (SOEs), investment, innovation and digitalization, and climate neutrality.

With regards to SOEs, Donnelly and others emphasized the importance of including provisions on SOEs in future investment and trade agreements, updating World Trade Organization (WTO) rules on subsidies, drawing China into multilateral consensus on export and development finance, as well as engaging China to reduce excess capacity in steel and rejoin the Global Forum on Steel Excess Capacity. The investment dialogue between China and the OECD should also be intensified and made more substantive, rather than political, according to Donnelly. Updating the investment policy review of China is also critical since the last review was done in 2008.

On innovation and digitalization, Donnelly noted the need to review efforts to onshore production in the name of supply chain resiliency, to study global value chains to ensure that policies are driven by OECD-generated facts and not politics and protectionism, to foster cooperation on IT and Artificial Intelligence (AI) information-sharing and standards’ development, engaging China on implementation and dissemination of AI principles and policies, as well as monitoring and acting on China’s development of virtual currency along with its impact on major currencies.

“Engaging China on harmonizing carbon pricing and emission trading schemes, pushing China more toward sustainable investment policies at home and abroad (such as their Belt and Road projects use of fossil fuels) and continuing to press for mitigation and strong environmental commitments from China is key,” said Donnelly.

Donnelly also led a discussion urging BIAC, as a business forum, to press the OECD and its member governments for substantive reform and results in its engagement with China and to worry less about protocol and diplomatic formalities.

“It was great to have USCIB and American business actively involved in BIAC’s preparations for this important China strategy session at the OECD,” added Donnelly.  “With a new Secretary General coming to OECD in June, a new U.S. Administration looking to play a leadership role at the OECD, and steadily growing concerns around the world about some of China’s policies and practices, it’s vital that Business at OECD and its American members focus on these issues of how the OECD can play a useful role with China.”

Donnelly added: “Eva Hampl from Dell did a great job leading Friday’s discussion on the innovation and digitalization issues.  She and I look forward to our roles as BIAC lead speakers in the session with the OECD China group.  It was also great to see several USCIB members logging on for the BIAC discussion, confirming that China issues, broadly defined, remain important priorities for USCIB and its broad, cross-sectoral membership.”

If members have issues, questions or suggestions related to this BIAC and OECD effort on China, please contact Allice Slayton Clark (asclark@uscib.org).

USCIB Welcomes Senate’s Unanimous Confirmation Vote on USTR Tai

Photo: Bill O’Leary/The Washington Post/Bloomberg via Getty Images

Washington, D.C., March 18, 2021—The United States Council for International Business (USCIB) salutes the Senate for its unanimous vote on March 17 to confirm Katherine Tai as the next U.S. Trade Representative (USTR), believing she is a solid choice for this important cabinet-level position, bringing outstanding experience as an attorney-advisor and litigator at USTR, as Chief Trade Counsel for the House of Representatives Ways and Means Trade Subcommittee, and as an attorney in the private sector.

America’s economic growth, jobs and competitiveness, our future, depends to a considerable degree on how well we are able to engage and compete in today’s, and tomorrow’s, global economy. USTR Tai will lead America’s efforts on some very important trade and investment issues including our leadership in the World Trade Organization (WTO), updated and improved rules on digital trade, reducing foreign trade and investment barriers hurting American companies and workers, and effectively enforcing our existing network of trade agreements. Tai’s experience with Congress, as well as her expertise in trade law, the WTO and in Asia and China will serve her, and our country, very well in ​this crucial position.

“USCIB knows and respects Ms.Tai and has worked well with her in her important role at the Ways and Means Committee,” said USCIB President and CEO Peter Robinson. “As an organization committed to open trade and investment flows, as well as high standards of corporate responsibility, all of us at USCIB and our member companies look forward to working with Ms.Tai to advance America’s economic interests and our shared values.”

Citi’s Senior Vice President and Managing Director of Global Government Affairs Rick Johnston, who also c​hairs the USCIB Trade and Investment Committee added, “Ms. Tai is the timely choice for this critical role as USTR at a very important an​d challenging time. Winning unanimous support from the Senate is a rare tribute to her abilities, her experience, and the respect she has earned from all quarters. The right leader at the right time for a very important job.”

About USCIB: USCIB promotes open markets, competitiveness and innovation, sustainable development, and corporate responsibility, supported by international engagement and regulatory coherence. Its members include U.S.-based global companies and professional services firms from every sector of our economy, with operations in every region of the world. As the U.S. affiliate of the International Chamber of Commerce, the International Organization of Employers and Business at OECD (BIAC), USCIB provides business views to policy makers and regulatory authorities worldwide and works to facilitate international trade and investment. More at www.uscib.org.