By Ryan Davis

Law360 (May 13, 2021, 7:58 PM EDT) -- U.S. Trade Representative Katherine Tai on Thursday again got an earful from lawmakers opposed to the Biden administration's call to waive intellectual property protection on COVID-19 vaccines, and said she aims to address their concerns and find a workable solution.

Tai testified before the House Ways and Means Committee for 4½ hours about trade policy. As was the case at a Senate hearing on Wednesday, many panel members tore into her announcement last week that the administration supports the IP waiver that has been proposed at the World Trade Organization by developing countries with limited vaccine access.

"Surrendering American technology, as this administration is actively pursuing, will not solve the practical problems that are preventing vaccines from being broadly available," said committee ranking member Kevin Brady, R-Texas. "Simply handing over the U.S. technology doesn't provide a single shot to people who need it now."

He pressed Tai for details about what the U.S. would seek in negotiations over the waiver, in terms of how long it would last, how it would be implemented, and if the U.S. would walk away if other countries insisted that it apply to more than just vaccines.

Tai did not respond with specifics, but told the panel that "we will not let intellectual property rights get in the way of saving lives," and said that by endorsing the proposal, the U.S. will have a seat at the table during WTO negotiations on the topics Brady mentioned.

"This administration has committed itself to roll up our sleeves and engage at the WTO, to exercise leadership there, to hear the concerns on both sides of this issue and drive towards a solution that will help to save lives," she said. "Because without a solution here, we are going to be in an economic recovery limbo for a very long time."

Noting that many developing countries supporting the waiver have expressed concern about not being able to make their own vaccines, Tai said she was reminded of "the really important principle that you can give a man a fish and feed him for a day, but you can teach him to fish, and he can have a meal for a lifetime."

Several other lawmakers, primarily Republicans, questioned the premise of the proposed waiver. Rep. Lloyd Smucker, R-Pennsylvania, described it as a "fundamental property rights question" and inquired how the administration could "give away the property of a company that has developed it on its own, without consideration."

Tai replied that "we're not talking about giving away intellectual property," and said the ideas like providing compensation for companies affected by the proposed temporary waiver of IP enforcement "are parameters for discussion, absolutely."

"In terms of what has been proposed at the WTO, it's been this serious cry for help that's been met with silence for months," she said.

Rep. Brad Wenstrup, R-Ohio, told Tai that he is worried that the proposed waiver "could do more harm than good" by creating greater competition for the raw materials needed to make the vaccines, potentially disrupting the supply chain for U.S. manufacturers.

"How can you ensure that weakening IP rules will not have a disastrous effect somewhere else?" he asked.

Tai replied that she had heard concerns like that from the pharmaceutical industry, but said that "because of a possible waiver of intellectual property at the WTO could lead to negative consequence or unintended consequences, that's actually a reason for us to engage at the WTO."

She emphasized that the administration's primary concern is ramping up vaccine manufacturing and distribution around the world, and that there are ways drugmakers could do that absent a WTO agreement on an IP waiver. The idea that the proposed waiver is the only thing the administration is doing to increase vaccine access is "a bit of a straw man," she said.

"I also want to urge the industry and manufacturers, don't be so nervous and afraid about what this means," she said. "I've invited them to seize this opportunity for leadership to join us. There is a lot that they could do voluntarily that would obviate what we would need to do at the WTO."

Several members of the panel expressed concern that the IP waiver could lead to important American medical technology falling in the hands of China. That led Rep. Earl Blumenauer, D-Oregon, to chide the "Chinese obsession" and praise Tai's plan to work toward increased vaccine access at the WTO.

"Your very careful, modulated answer of how you're going to approach that in a partnership with industry and other countries in the WTO framework, I think is exactly how we'll be able to work moving this forward," he said.

At a separate hearing on Wednesday, Health and Human Services Secretary Xavier Becerra told a House panel that the administration will include vaccine developers in discussions about the waiver.

"We are willing to sit down and negotiate to see if there's a way to deal with this," he said. "Everything is still the same until we've negotiated."

--Editing by Amy Rowe.

For a reprint of this article, please contact reprints@law360.com.