By Andrew Karpan

Law360 (May 19, 2021, 4:41 PM EDT) -- A group of Republican senators on Wednesday sought more details from the Biden administration on its decision to back a temporary waiver on intellectual property protections related to COVID-19, warning that the waiver won't only cover vaccines and would help China and other countries that "regularly steal American intellectual property."

Led by Sen. Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, and Sen. Thom Tillis of North Carolina, the top Republican on the Senate's intellectual property subcommittee, at least 14 GOP senators issued a rebuke to U.S. Trade Representative Katherine Tai's announcement earlier this month that the country would support a proposal at the World Trade Organization to temporarily waive intellectual property protections on COVID-19 vaccines.

Speculation over China will be central in framing Republican opposition to the waiver, the letter suggested, as it stoked fears that the production of vaccines elsewhere would "enable Beijing to undercut American leadership on vaccine distribution."

"What would happen if a Chinese national is found to have stolen trade secrets? Under the waiver, if adopted, would they not be prosecuted?" they asked, adding that "all President Biden's giveaway to China and India and others will do is foster uncoordinated vaccine nationalism."

Two of the letter's signatories — Tillis and Sen. Tom Cotton, R-Ark. — had already responded to Tai's announcement, which they had called "disastrous" and "astonishing." But Wednesday's letter, addressed both to Tai and U.S. Commerce Secretary Gina Raimondo, specifically sought clarity on the Biden administration's policy toward intellectual property.

"Does the Biden administration plan on waiving American intellectual property laws? Does the Biden administration plan on waiving domestic intellectual property enforcement, including enforcement against intellectual property and trade secret theft?" the senators asked in their letter.

Any idea of what an agreement to waive parts of the WTO's agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS, would look like remains a long way off, since decisions by the international trade body require consensus among all 164 members. On Tuesday, backers of the waiver said that they "will soon issue" an amended proposal that will "further clarify the scope of the proposed waiver while also addressing the period during which it will apply."

Republicans in Congress, however, have not concealed their opposition to a waiver of any kind. One of the letter's signatories, Finance Committee Ranking Member Mike Crapo of Idaho, grilled Tai on the subject last week, telling her that she did not have the legal authority to waive global IP rights without consulting Congress.

Wednesday's letter itemized those concerns and added speculation as to the reasoning behind the administration's policy change this month. The senators said they wanted an answer from Biden officials that would allow them to "better understand this decision to support intellectual property theft and forced technological transfer."

"Was support for a TRIPS waiver predicated on foreign countries supporting any of the administration's international climate priorities?" the senators asked. They also wanted a response to hesitation from Europe on the waiver and wanted to know why the policy change wasn't coordinated with "key allies."

They wanted a commitment from the administration that the proposal's reach would be limited or if there would be a move "to replicate this action with other vaccines or biotechnologies in the future."

Representatives for the U.S. Trade Representative's office and the U.S. Department of Commerce did not respond to a request for comment on Wednesday.

--Additional reporting by Alex Lawson and Ryan Davis. Editing by Adam LoBelia.

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